Of Marriage, and the “Constitutions” of Nations

The “constitution” of Marriage, and the “Constitutions” of Nations

By LYNN D. WARDLE*

Introduction

THE “CONSTITUTION” (lower-case “c”) of a nation or political state (hereinafter “nation”) exists apart from the legal “Constitution” (up- per-case “C”) of a nation. The constitution of a nation usually is formed long before the Constitution of that nation is written or adopted. The “constitution” refers to “[t]he way in which a thing is constituted or made up . . . the actual existing order.”1 The “Constitu- tion” means “the system or body of fundamental principles according to which a nation, state, or body politic is constituted and governed.”2 The legal Constitution (of democratic nations, especially) generally reflects the social and normative constitution of the nation, including marriage and families. But the legal Constitution also influences the social constitution (values, principles, understandings, root para- digms, institutions, and relationships) of the society, including the institutions of marriage and the family. The interrelationship and balance between marriage (the foundation of society) and legal Con- stitutions (the foundation of the legal and political order) is the focus of this article. Using both the constitution and the Constitution of the

* Bruce C. Hafen Professor of Law, J. Reuben Clark Law School at Brigham Young University, Provo, UT 84604, USA. An earlier version of this paper was presented at the International Conference on Marriage & Constitution, at Bar-Ilan University Faculty of Law, Ramat-Gan, Israel. The valuable research assistance of Malisa King and Robert Selfaison, and the helpful and constructive comments and suggestions of the co- participants in the Bar-Ilan conference is gratefully acknowledged. I thank especially Professor Shahar Lifshitz for convening the symposium. 1. Constitution Definition, 1 THE NEW SHORTER OXFORD ENGLISH DICTIONARY 489 (Les- ley Brown ed., 1993). The accepted usage rule is that “generic forms are usually lower- cased,” while reference to “[f]ormal or accepted titles” of specific legal documents such as “treaties, acts . . . and similar documents . . . are capitalized,” THE CHICAGO MANUAL OF STYLE r. 8.79 (16th ed. 2010). However, to keep the distinction between formal-legal-political Constitutions and non-legal constitutive institutions that is the subject of this article, all references to all legal constitutions herein will use a capital “C.” 2. Constitution Definition, supra note 1, at 489.

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United States of America as an example (with some comparisons to the origins of the State of Israel and of its unwritten constitution), this article will explain why marriage is the critical cornerstone of constitutional democracies. It also explains why the Constitutions or basic laws of democratic nations should (and often do) extend special, unique protection to male-female (conjugal) marriage and marital families. Following a review of the role of marriage in undergirding republica- tion self-government in the understanding of the Framers of the Con- stitution, and similar views noted by the Founders of the more recent nation of Israel, the author asserts that the constitution of our nation as well as the Constitution of the nation are endangered today. The article concludes that altering the definition of marriage to include same-sex unions will damage the institution of marriage and will thus result in a weakening of the foundation upon which liberal democratic societies (including American society) and their legal systems rest.

I. Beliefs of the American Founders About Human Nature and Government A. The Founders Saw Government As a Reflection of Human Nature The Framers of the U.S. Constitution thought that a sound understanding of human nature was necessary to create and perpetuate a successful human government.3 They grasped that the nature of government and human nature are inextricably linked. As James Madison, the Father of the Constitution, asked: “[W]hat is government itself, but the greatest of all reflections on human nature?”4 The dilemma, as the Framers saw it, was that “man’s fallen nature . . . made government necessary and yet made a lasting democracy impossible.”5 The Founding Fathers had a very sober understanding of the duality of human nature, and of the need for government to deal with both the evil capacity and the good capacity of human nature. They believed that “[m]an has a dual nature. His ‘passions and appetites are parts of human nature,’ but so are ‘reason and the moral sense.’”6 As

3. See infra Part I.A. 4. THE FEDERALIST No. 51, at 264 (James Madison) (Ian Shapiro ed., Yale Univ. Press 2009) (linking human nature and government). 5. Richard Vetterli & Gary Bryner, Public Virtue and the Roots of American Government, 27 BYU STUD., Summer 1987, at 29, 35. 6. Id. at 36 (quoting 6 JOHN ADAMS, THE WORKS OF JOHN ADAMS, SECOND PRESIDENT OF THE UNITED STATES, 115 (1851)). Fall 2010] THE CONSTITUTION OF MARRIAGE 439

Alexander Hamilton explained in Federalist No. 15: “Why has government been instituted at all? Because the passions of men will not con- form to the dictates of reason and justice, without constraint.”7 James Madison agreed, writing in Federalist No. 51: “If men were angels, no government would be necessary.”8 However, they also believed that man had the capacity for good, cooperation, and noble feelings and behavior. Thomas Jefferson, John Adams, and Thomas Paine were among the Founders “who believed that God had created man with the necessary qualities to live in a social environment.”9 And James Madison believed, as he wrote in Federalist No. 55: “As there is a degree of depravity in mankind which requires a certain degree of circum- spection and distrust, so there are other qualities in human nature which justify a certain portion of esteem and confidence.”10 Thus, Madison urged that structural precautions be incorporated into the Constitution of the United States because of the dual nature (propensity for both good and evil) of the constitution of human nature.11 He urged a “policy of supplying, by opposite and rival interests, the defect of better motives” as a matter of “prudence” in “the distri- bution of the supreme powers of the State.”12 Hamilton agreed by ask- ing rhetorically whether “momentary passions, and immediate interests, have a more active and imperious control over human conduct than general or remote considerations of policy, utility, or justice? . . . Are not [republics] administered by men as well as [monarchies]?”13 Thus, he concluded that guarantees of individual liberty “must altogether depend on public opinion, and on the general spirit of the people and of the government.”14 The eighteenth- century Founders of the American Republic understood that there was a strong, reciprocal relationship between law and the social-cultural constitution of society.

7. THE FEDERALIST No. 15, at 76–77 (Alexander Hamilton) (Ian Shapiro ed., Yale Univ. Press 2009). 8. THE FEDERALIST No. 51, supra note 4. 9. Vetterli & Bryner, supra note 5, at 36. 10. THE FEDERALIST No. 55, at 285 (James Madison) (Ian Shapiro ed., Yale Univ. Press 2009). 11. THE FEDERALIST No. 51, supra note 4 (“A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions.”). 12. Id. 13. THE FEDERALIST No. 6, at 28 (Alexander Hamilton) (Ian Shapiro ed., Yale Univ. Press 2009). 14. See THE FEDERALIST No. 84 (Alexander Hamilton) (Ian Shapiro, ed., Yale Univ. Press 2009). 440 UNIVERSITY OF SAN FRANCISCO LAW REVIEW [Vol. 45

The connection between the constitution of man (and people and society) and the Constitution of law (and government) has been a part of the American constitutional context since the country’s founding, and it has been repeatedly confirmed for the past two centuries. “[E]very legal system implies a philosophy of law which in turn implies a general ontology.”15 Modern American scholars have noted: “Study of the problems of satisfying human wants . . . becomes the study of the problems of people living together in such general-interest groups, or communities. This calls, first of all, for an understanding of the conditions which make such community living possible.”16

B. The Founders of America Believed in the Social Dimension of Human Nature The Framers of the U.S. Constitution believed that relationships and associations with other human beings are very important to human welfare. The social dimension of human nature was well-understood in 1787 in America, and long before then.17 Many of the greatest philosophers throughout the ages have recognized and discussed the social nature of humankind.18 Aristotle de-

15. Ursula M. von Eckardt, The Philosophy of Law in Historical Perspective by Carl Joachim Friedrich, 68 YALE L.J. 1318, 1319 (1959) (book review). 16. Henry M. Hart, Jr. & Albert M. Sachs, The Legal Process: Basic Problems in the Making and Application of Law (1958) (unpublished manuscript), in THE CANON OF AMER- ICAN LEGAL THOUGHT 255, 256 (David Kennedy & William W. Fisher III, eds., 2006). [S]ubstantive understandings or arrangements about how the members of an inter- dependent community are to conduct themselves in relation to each other and to the community necessarily imply the existence of what may be called constitutive or procedural understandings or arrangements about how questions in connection with arrangements of both types are to be settled. The constitutive arrangements serve to establish and to govern the operation of regularly working—that is institutionalized—procedures for the settlement of questions of group concern. These institutionalized procedures and constitutive arrangements establishing and governing them are obviously more fundamental that the substantive arrangements in the structure of a society, if not the realization of its ultimate aims, since they are at once the source of the substantive arrangements and the indispensable means of making them work effectively. Id. at 257. 17. See infra Part I.B. 18. See, e.g.,PLATO, THE REPUBLIC, 369a–b (Richard W. Sterling & William C. Scott trans., Norton paperback ed. 1996) (“A State . . . arises . . . out of the needs of mankind; no one is self-sufficing, but all of us have many wants.”); HUGO GROTIUS, GROTIUS ON THE RIGHTS OF WAR AND PEACE: AN ABRIDGED TRANSLATION xxiv (William Whewell ed. & trans., 2009) (1625) (“And among these properties which are peculiar to man, is a desire for a society.”); SAMUEL VON PUFENDORF, 2 DE JURE NATURAE ET GENTIUM LIBRI OCTO 42 (Frank Gardner Moore trans., 1927) (1672) (“[T]he social life with others binds all men equally.”). Fall 2010] THE CONSTITUTION OF MARRIAGE 441 scribed human beings as social or political creatures and wrote that “there is in everyone by nature an impulse toward this sort of partnership.”19 Cicero agreed.20 Aquinas wrote that “man has a natural inclination . . . to live in society.”21 The basis for this truth can be traced to words in the book of Genesis that have been well-known for millennia: “And the Lord God said, It is not good that the man should be alone; I will make him an help meet for him.”22 Thus, it is not insignificant that ten percent of the sources cited in American political writings published during the constitution-writing decade of the 1780s were classical writers.23 John Locke’s writings were so influential on the Founders of the American republic that he has been called “America’s founding philosopher.”24 Locke wrote extensively about the social importance of human nature in explaining the origins of both families and political societies.25 In his Second Treatise of Government, Locke observed that mankind has a nature that is “under strong Obligations of Necessity, Convenience, and Inclination, to drive him into Society . . . . The first Society was between Man and Wife, which gave beginning to that between Parents and Children . . . .”26 They form political societies “by agreeing with other Men, to joyn [sic] and unite into a Community, for their comfortable, safe, and peaceable living, one amongst another, in a secure enjoyment of their properties, and a greater Secur- ity against any that are not of it.”27 Rousseau agreed. He declared that

19. ARISTOTLE, THE POLITICS bk. I, at 37 (Carnes Lord trans., The Univ. of Chicago Press 1984) (c. 350 B.C.E.) (“[M]an is much more a political animal than any kind of bee or any herd animal is clear.”). 20. Cicero, On the Commonwealth, in ON THE COMMONWEALTH AND ON THE LAWS 70 (James E. Zetzel trans., Cambridge Univ. Press 1999) (c. 50 B.C.E.) (explaining that without parental love of children, “all social bonds are destroyed.”). 21. ST.THOMAS AQUINAS, 2 SUMMA THEOLOGICA 44 (Fathers of the English Dominican Province trans., 1915) (c. 1274 C.E.). 22. Genesis 2:18 (King James). 23. DONALD S. LUTZ, THE ORIGINS OF AMERICAN CONSTITUTIONALISM 141 tbl.1 (1988). It is also relevant that about one-third of the sources cited in such writings were Biblical. Id. 24. James R. Stoner, Was Leo Strauss Wrong About John Locke?, CLAREMONT INST. (Dec. 23, 2002), http://www.claremont.org/publications/pubid.260/pub_detail.asp. 25. See, e.g.,JOHN LOCKE, A LETTER CONCERNING TOLERATION (Mario Montuori ed., The Hague 1963) (1689); JOHN LOCKE, TWO TREATISES OF GOVERNMENT (Peter Laslett ed., New Am. Library 1960) (1690); JOHN LOCKE, AN ESSAY CONCERNING HUMAN UNDERSTAND- ING (Alexander Campbell Fraser trans., Clarendon Press 1894) (1690); JOHN LOCKE, SOME THOUGHTS CONCERNING EDUCATION (F.W. Garforth, ed., Barron’s Educ. Series, Inc. 1964) (1693). 26. John Locke, Second Treatise of Government, in TWO TREATISES OF GOVERNMENT 305, 361–62, para. 77 (Peter Laslett ed., Cambridge Univ. Press 1963) (1690). 27. Id. at 375, para. 95. 442 UNIVERSITY OF SAN FRANCISCO LAW REVIEW [Vol. 45

“[t]he oldest form of society—and the only natural one—is the family” and that “the family [is] the basic model of all political associations.”28 Montesquieu, whose writings, especially, The Spirit of the Laws, were cited more often than any other secular writer by the American Founders during the decade in which the Constitution of the United States (and of several states) was written, explained that “[l]aws in their most general signification, are the necessary relations arising from the nature of things”29 and that one the first laws of human nature is man’s natural desire to live in society.30 Again, it is noteworthy that Montesquieu was the most frequently-cited secular writer in American political writings published during the Constitution-writing decade of the 1780s (accounting for fourteen percent of all citations), Locke was tied (with Montesquieu) as the most frequently cited secular writer in the decade of the 1770s, and Locke, with 2.9 percent of all citations, was the third most frequently cited secular writer of the entire founding era of 1760–1805 (after Montesquieu and Blackstone).31 The American Founders believed (with their contemporary, Ed- mund Burke) “that ‘to be attached to the subdivision, to love the little platoon we belong to in society, is the first principle (the germ as it were) of public affection.’”32 The Founders’ view of human nature as social as well as individual, with potential for good as well as evil, pro- foundly influenced how the American Constitution was drafted.

C. The Founders Saw Marriage and Family As the First Foundational Society By 1787, marriage had long been recognized as the foundation of family, which is the basic social unit of society. In fact, Plato and Aris- totle stated that the regulation of marriage was the first duty of the wise legislator.33 “Cicero (106–34 B.C.), the leading jurist and moralist of his day, for example, called marriage a natural partnership of the

28. Jean Jacques Rousseau, The Social Contract, in SOCIAL CONTRACT: ESSAYS BY LOCKE, HUME AND ROUSSEAU, 237, 241 (Gerard Hopkins trans., Oxford Univ. Press 1947) (1762). 29. 1 CHARLES DE SECONDAT,BARON DE MONTESQUIEU, THE SPIRIT OF THE LAWS 1 (Thomas Nugent trans., Hafner Publ’g Co. 1949) (1748) [hereinafter MONTESQUIEU, THE SPIRIT OF THE LAWS]. 30. Id. at 3–5. 31. LUTZ, supra note 23, at 143 tbl.3. 32. RAOUL BERGER, FEDERALISM: THE FOUNDERS DESIGN 55 (1987) (quoting EDMUND BURKE, REFLECTIONS ON THE REVOLUTION IN FRANCE 195 (1909)). 33. 10 Aristotle, Politica, in THE WORKS OF ARISTOTLE TRANSLATED INTO ENGLISH I, 1334b–1335a (W.D. Ross. ed., Benjamin Jowett trans., Oxford Univ. Press 1st ed. 1921) (c. 350 B.C.E.). Fall 2010] THE CONSTITUTION OF MARRIAGE 443 person and property of husband and wife that served for procreation, for companionship, and ultimately for the broader cultivation of duti- ful affection, kindness, liberality, good-will, courtesy, and the other grace of the same kind.”34 Cicero described marriage as creating “the first bond” of society and as “the foundation of civil government, the nursery, as it were, of the state.”35 As human beings are social, the first experience in society is critical. Our first society, our first interaction involving any society, is in a family.36 Family relations create the template that we will use in forming all other relations.37 Further, family provides the setting for the most poignant, impressive, most memorable, most long-lasting, relationships. Who has known you better or longer than your parents or siblings; or your husband or wife? As noted above, Locke, Montesquieu, and other political philosophers who were so influential on the American Founders saw marital family as the first society. The Founders enthusiastically embraced that view. As will be shown later,38 because they saw civil government as a reflection of the influence of the family, the founding generation strongly promoted committed, monogamous, egalitarian marriage as the basis of republicanism.

D. The Founders Believed Republican Government Could Only Succeed if the People Had Virtue In the founding era, it was universally believed that if any form of democratic government were to succeed, the people who were governing themselves would have to be virtuous. The idea of virtue was central to the political thought of the Foun- ders of the American republic. Every body of thought they encoun- tered, every intellectual tradition they consulted, every major

34. John Witte, Jr., The Goods and Goals of Marriage, 76 NOTRE DAME L. REV. 1019,1024 (2001) (internal quotations omitted). 35. CICERO, DE OFFICIIS bk. I, at 57 (Walter Miller trans., Harvard Univ. Press 2001) (c. 50 B.C.E.). 36. See supra notes 26–30. See also Reynolds v. United States, 98 U.S. 145, 165 (1878) (“Upon it [marriage] society may be said to be built, and out of its fruits spring social relations and social obligations . . . .”); Maynard v. Hill, 125 U.S. 190, 211 (1888) (charac- terizing marriage as “the foundation of the family and of society”); Loving v. Virginia, 388 U.S. 1, 12 (1967) (citing Skinner v. Oklahoma, 316 U.S. 535, 541 (1942), for the proposition that “[m]arriage and procreation are fundamental to the very existence and survival of the race.”)). 37. See generally Lynn D. Wardle, The Morality of Law and the Transformative Power of Inclusion, in WHAT’S THE HARM? 207, 211–14 (2008) (noting ways in which marriage pro- foundly shapes society) [hereinafter Wardle, The Morality of Law]. 38. See infra Part I.F. 444 UNIVERSITY OF SAN FRANCISCO LAW REVIEW [Vol. 45

theory of republican government by which they were influenced emphasized the importance of personal and public virtue. It was understood by the Founders to be the precondition for republican government, the base upon which the structure of government would be built. Virtue was the common bond that tied together the Greek, Roman, Christian, British, and European ideas of government and politics to which the Founders responded.39 James Harrington, whose Oceana was popular among the Foun- ders, wrote: Now government is no other than the soul of a nation or city; wherefore that which was reason in the debate of a commonwealth, being brought forth by the result, must be virtue; and for as much as the soul of a city or nation is the sovereign power, her virtue must be law. But the government whose law is virtue, and whose virtue is law, is the same whose empire is authority, and whose authority is empire.40 Algernon Sydney, known as “the glorious Sydney” because he was a martyr for liberty, declared: “[L]iberty cannot be preserved, if the manners of the people are corrupted.”41 “[A]ll popular and well- mixed governments [republics] . . . are ever established by wise and good men, and can never be upheld otherwise than by virtue . . . .”42 He also wrote: “[I]f vice and corruption prevail, liberty cannot subsist; but if virtue have the advantage, arbitrary power cannot be established.”43 Baron de Montesquieu perhaps wrote most emphatically about the need for virtue in a Republic. [I]n a popular state, one spring more is necessary, namely, virtue . . . . For it is clear that in a monarchy . . . there is less need of virtue than in a popular government, where the person intrusted [sic] with the execution of the laws is sensible of his being subject to their direction. . . . When virtue is banished, ambition invades the minds of those who are disposed to receive it, and avarice pos- sesses the whole community. The objects of their desires are changed; what they were fond of before has become indiffer- ent; . . . and each citizen is like a slave who has run away from his master. . . .44

39. RICHARD VETTERLI & GARY BRYNER, IN SEARCH OF THE REPUBLIC: PUBLIC VIRTUE AND THE ROOTS OF AMERICAN GOVERNMENT 1 (1996). 40. James Harrington, The Commonwealth of Oceana, in THE COMMONWEALTH OF OCE- ANA AND A SYSTEM OF POLITICS 1, 19 (J.G.A. Pocock ed., Cambridge Univ. Press 1992) (1656). See LUTZ, supra note 23, at 142 tbl.2 (Harrington was the thirty-fifth most frequently cited author during the founding era). 41. ALGERNON SIDNEY, DISCOURSES CONCERNING GOVERNMENT 252 (Thomas G. West ed., Liberty Fund 1996) (1698). 42. Id. at 186. 43. Id. at 302. 44. MONTESQUIEU, THE SPIRIT OF THE LAWS, supra note 29, at 20–21. Fall 2010] THE CONSTITUTION OF MARRIAGE 445

“As virtue is necessary in a republic, and in a monarchy honor, so fear is necessary in a despotic government: with regard to virtue, there is no occasion for it, and honor would be extremely dangerous.”45 The highly influential Blackstone agreed: “In a democracy, where the right of making laws resides in the people at large, public virtue, or goodness of intention, is more likely to be found than either of the other qualities of government [wisdom or power].”46 Both Federalists and Anti-Federalists believed that virtue was essential to a popular republic and that immorality and corruption could be looked upon as forerunners of tyranny. Benjamin Franklin declared that: “[O]nly a virtuous people are capable of freedom. As nations become corrupt and vicious, they have more need of masters.”47 George Washington declared that the American government will last only “so long as there shall remain any virtue in the body of the people.”48 He also said: “[T]he foundations of our National policy will be laid in the pure and immutable principles of private morality.”49 James Madison told the Virginia Ratifying Convention that: “To suppose that any form of government will secure liberty or happiness without any virtue in the people, is a chimerical idea.”50 Samuel Adams wrote to Richard Henry Lee that whether or not America was to be able to enjoy its hard won “independence and freedom . . . depends on her virtue.”51 Adams further admonished in a letter to James Warren: He who is void of virtuous Attachments in private Life, is, or very soon will be, void of all Regard for his Country. There is seldom an Instance of a Man guilty of betraying his Country, who had not before lost the Feeling of moral Obligations in his private Connections.52 His cousin, John Adams, declared: “The only foundation of a free Constitution, is pure Virtue, and if this cannot be inspired into our People, in a greater Measure, than they have it now, They may change

45. Id. at 22. 46. 1 WILLIAM BLACKSTONE, COMMENTARIES *49. 47. 1 BENJAMIN FRANKLIN, MEMOIRS OF BENJAMIN FRANKLIN 604 (1834). 48. Letter from George Washington to Marquis de Lafayette (Feb. 7, 1788), available at http://gwpapers.virginia.edu/documents/constitution/1788/lafayette1.html. 49. George Washington, Inaugural Address of 1789, available at http://www.archives. gov/exhibits/american_originals/inaugtxt.html. 50. 5 JAMES MADISON, THE WRITINGS OF JAMES MADISON 223 (Gaillard Hunt ed., 1904). 51. Vetterli & Bryner, supra note 5, at 41 (internal quotations omitted). 52. Letter from Samuel Adams to James Warren (Nov. 4, 1775), in 3 THE WRITINGS OF SAMUEL ADAMS 232, 236 (Harry Alonzo Cushing ed., 1907). 446 UNIVERSITY OF SAN FRANCISCO LAW REVIEW [Vol. 45 their Rulers, and the forms of Government, but they will not obtain a lasting Liberty.”53 On another occasion he wrote: [W]e have no government armed with power capable of contend- ing with human passions unbridled by morality and religion. Ava- rice, ambition, revenge, or gallantry, would break the strongest cords of our Constitution as a whale goes through a net. Our Consti- tution was made only for a moral and religious people. It is wholly inadequate to the government of any other.54 The eloquent Anti-Federalist, Patrick Henry, declared: Bad men cannot make good citizens. It is when a people forget God that tyrants forge their chains. A vitiated state of morals, a corrupted public conscience, is incompatible with freedom. No free government, or the blessings of liberty, can be preserved to any people but by a firm adherence to justice, moderation, temper- ance, frugality, and virtue; and by a frequent recurrence to fundamental principles.55 Thomas Jefferson agreed: “It is in the manners and spirit of a people which preserve a republic in vigour. A degeneracy in these is a canker which soon eats to the heart of its laws and constitution.”56 Benjamin Rush agreed: “[W]ithout virtue there can be no liberty.”57 Also, Andrew Jackson stated that “[n]o free government can stand without virtue in the people, and a lofty spirit of patriotism.”58 The importance of virtue was explicitly acknowledged in several of the state constitutions of the founding era. For example, the original Vermont Constitution of 1777 contained a “Virtue Clause,” which was combined with the “Education Clause” in the revised Vermont Constitution of 1786 to read: “Laws for the encouragement of virtue and prevention of vice and immorality, ought to be constantly kept in force, and duly executed; and a competent number of schools ought to be maintained in each town for the convenient instruction of youth.”59

53. Letter from John Adams to Zabdiel Adams (June 21, 1776), in 4 LETTERS OF DELE- GATES TO CONGRESS 278, 279 (Paul H. Smith ed., 1979). 54. Letter from John Adams to the Officers of the First Brigade of the Third Division of the Militia of Massachusetts, in 9 THE WORKS OF JOHN ADAMS, SECOND PRESIDENT OF THE UNITED STATES 228, 228–29 (1854) (emphasis added). See also JOHN R. HOWE JR., THE CHANGING POLITICAL THOUGHT OF JOHN ADAMS 165 (1966) (separating government into different branches avoids corruption). 55. CHARLES W. MORGAN, THIS DYNAMIC WORLD 103 (2010). 56. THOMAS JEFFERSON, NOTES ON THE STATE OF VIRGINIA 197 (David Waldstreicher ed., Palgrave 2002) (1787). 57. BENJAMIN RUSH, ESSAYS, LITERARY, MORAL AND PHILOSOPHICAL 8 (2d ed. 1806). 58. Andrew Jackson, Farewell Address, in AMERICAN PRESIDENTS: FAREWELL MESSAGES TO THE NATION, 1796–2001, at 69, 74 (Gleaves Whitney ed., 2003). 59. VT. CONST. ch. II, § 68. Fall 2010] THE CONSTITUTION OF MARRIAGE 447

Shortly after the founding of America, French commentator Alexis de Tocqueville traveled through America. One of his observations has been widely summarized as: “America is great because she is good, and if America ceases to be good, she will cease to be great.”60 That statement fairly captures the connection among virtue, national security, and prosperity that was dominant in the American founding era and that remains vital.61

E. The Moral Constitution of a State Without a Written Constitution The view that virtue is the cornerstone of a vital, free, representa- tive democracy is not unique to the Founders or leaders of America. Nor are these views merely interesting relics, intellectual vestigial rem- nants of a by-gone day. For example, some of the founders and other leaders of the modern State of Israel expressed similar views. The Constitution of Israel is especially significant here for two reasons. First, the State of Israel is one of the most recently formed nations, having been established by the Declaration of the Establishment of the State of Israel, made by the Provisional Government and the Provi- sional Council of State on May 14, 1948 (sometimes referred to as the Israeli Declaration of Independence).62 As a result of its recent formation, it is not bound by a large amount of antiquated public law that was adopted many decades, or even centuries, ago. Second, the State of Israel is one of the few contemporary nations without a written Constitution.63 The May 14, 1948 Declaration mentions a draft Consti-

60. It is not documented that de Tocqueville used these words that many respected persons have attributed to him, but they are a shorthand summary of his observations in his two-volume Democracy in America. See, e.g., John J. Pitney, The Tocqueville Fraud, WKLY. STANDARD, Nov. 13, 1995, http://www.weeklystandard.com/Content/Protected/Articles/ 000/000/006/951lhlhc.asp (noting that the quote seems to reflect de Tocqueville’s senti- ments, but he did not write these exact words, even though many respected leaders have attributed them to him). See generally 1 ALEXIS DE TOCQUEVILLE, DEMOCRACY IN AMERICA 383 (Phillips Bradley ed., Henry Reeve, Francis Bowen & Phillips Bradley trans., Alfred A. Knopf 1956) (1863) (“[M]anners of the people may be considered as one of the great general causes to which maintenance of a democratic republic in the United States is attributable.”). 61. More recently, Ronald Reagan said at a National Prayer Breakfast in 1984: “If we ever forget that we’re one nation under God, then we will be a nation gone under.” Ronald Reagan, Remarks at a Dallas Ecumenical Prayer Breakfast (Aug. 23, 1984), available at http://www.americanrhetoric.com/speeches/ronaldreaganecumenicalprayer.htm. 62. Declaration of the Establishment of the State of Israel, 1 LSI 3–5 (1948). See generally Frank S. Ravitch, Religious Freedom and Israeli Law, 57 DRAKE L. REV. 879 (2009). 63. See William W. Van Alstyne, Quintessential Elements of Meaningful Constitutions in Post-Conflict States, 49 WM. & MARY L. REV. 1497, 1500 n.11 (2008) (Israel, New Zealand, and the UK are “the rare exceptions” of nations with no written constitution). 448 UNIVERSITY OF SAN FRANCISCO LAW REVIEW [Vol. 45 tution to be prepared by a constitutional committee and then adopted by an elected Constituent Assembly. However, the Constituent Assem- bly converted itself into the first Knesset (legislative body) and it has avoided ever since drafting a Constitution “primarily for fear that a constitution would unleash a divisive conflict between religious and state authorities.”64 Thus, the courts have only very limited authority to strike down legislation.65 Rather, the legislators are significantly influenced by social and cultural tensions and influences, and the courts are highly attuned to the “ebbing and flowing” of various principles in their judicial review.66 Thus, the constitution of the nation of Israel is of profound importance in the formation and formulation of law and binding principles in that State. The moral integrity and virtue of the people of the nation are especially critical. As David Ben-Gurion famously said: “The fate of Israel depends upon two things: her strength and her righteousness.”67 He also wrote that “the basic meaning of Israel’s existence and the fundamental mission of the Jewish people” is to be found in “the earlier sections of Torah,” which teach that Israel consists of “two things: an Ark and a Covenant; in other words a refuge and a dynamic. I think the dynamic, the Covenant, takes prece- dence . . . .”68 Ben-Gurion reflected that the Jewish state was based on

64. The Constitution, ISRAEL: A COUNTRY STUDY, http://countrystudies.us/israel/78. htm (last visited Mar. 11, 2011). See also Jonathan Segev, Who Needs A Constitution? In Defense of the Non-Decision Constitution-Making Tactic in Israel, 70 ALA. L. REV. 409, 416–24 (2007). See also Guy E. Carmi, A Constitutional Court in the Absence of a Formal Constitution? On the Ramifi- cations of Appointing the Israeli Supreme Court as the Only Tribunal for Judicial Review, 21 CONN. J. INT’L L. 67 (2005) (noting that although Israel does not have a constitution, the Basic Laws have a constitutional nature). 65. Only Basic Laws that include what are known as “entrenched” provisions may be applied by the courts to strike down conflicting legislation. If a provision is not entrenched, courts have no authority to strike down legislation that a court be- lieves conflicts with the Basic Law. If a provision is not entrenched, a court in a given case may invalidate the execution of a law that the court finds to be in conflict with civil rights or liberties found in the Basic Laws, decisions of the Su- preme Court of Israel, treaties, or the Declaration of the Establishment of the State of Israel—usually after applying a balancing test. Yet, as noted above, in most situations courts may not strike down the legislation itself. Ravitch, supra note 62, at 886. 66. See id. at 890–94. See also Segev, supra note 64, at 442–88; Aharon Barak, Foreword: A Judge on Judging: The Role of A Supreme Court in a Democracy, 116 HARV. L. REV. 16 (2002) (President of the Supreme Court of Israel discussed judicial interpretation). 67. SHIMON PERES, WITH STRENGTH AND WITH SPIRIT: A VIEW OF DAVID BEN-GURION 27 (1974). 68. DAVID BEN-GURION, MEMOIRS 175 (Thomas R. Bransten ed., 1970). Fall 2010] THE CONSTITUTION OF MARRIAGE 449 the Mosaic command that the people be “amsagolah,” which Ben-Gu- rion said doesn’t mean “special” or “superior”. It has the connotation of “unique” and also one of its meanings might be expressed by the phrase “higher virtues”. But these I fear are only partial implica- tions. We might say that Moshe’s message from God could thus be summed up: “The Jews must be a unique nation in that they should embody the higher virtues.” In other words, the uniqueness of the Jews is not that they consider themselves to be singled out for special status by God, to be his favoured creatures or his super-race. It doesn’t mean that like Moslems they can look forward to being the elect of Paradise. Rather Amsagolah implies an extra burden, an added responsibility to perform with a virtue born of conscience and to listen to what Elijah later called “the still, small voice”.69 Thus, “Israel was to spread morality throughout the universe. It was to do so not by conquest but by example.”70 He added: “[T]he Jews must strive so long as they endure to be an Amsagolah. ‘I the Lord have called thee in righteousness and have taken hold of thy hand and kept thee and set thee for a Covenant of the people, for a light unto the nations.’ (Isaiah 42-6).”71 That is why Ben-Gurion (echoing some Founders of the United States) also declared: “I have always been very concerned, secularist though I am, with this country’s spiritual state.”72 He also said: “For our security, survival, and status in the world . . . Israel must strive incessantly for moral, cultural, technologi- cal, and social improvement and to be a unique people.”73 Likewise, Chaim Weitzman declared: The building of a Jewish homeland calls for an organic transforma- tion in the Jewish people. . . . It is not enough to be poor, to be persecuted, to be in want, in order to put forth a gigantic effort. There must be something deeply affirmative. There must be something which releases energies, awakens imagination and initiative, taps new sources of vitality.74 As the modern State of Israel is culturally, intellectually, and relig- iously linked to the Israel of ancient Biblical times, it is not insignificant that the connection between virtue of the people and the safety and prosperity of the people, as a people, was a constant theme in the Old Testament. For example, Moses’s final direction to the children

69. Id. at 178 (punctuation as in original). 70. Id. at 179. 71. Id. at 181. 72. Id. at 180. 73. HERMA SILVERSTEIN, DAVID BEN-GURION 118 (1988) (internal quotations omitted). 74. Chaim Weizmann, Address in New York (Mar. 26, 1941), in CHAIM WEIZMANN EX- CERPTS FROM HIS HISTORIC STATEMENTS, WRITINGS, AND ADDRESSES, A BIOGRAPHY 48, 48 (Sam E. Bloch ed., 2d rev. ed. 1962). 450 UNIVERSITY OF SAN FRANCISCO LAW REVIEW [Vol. 45 of Israel before he died was that if they would obey the command- ments of the Lord, he would protect, deliver, strengthen, and avenge them; prosper them; and prolong their days in the land.75 The Lord admonished Joshua, after the death of Moses, that if he would “observe to do according to all the law, which Moses my servant com- manded thee” that he would “prosper” wherever he went and would have “good success.”76 Likewise, Proverbs 14:34 teaches Israel: “Right- eousness exalteth a nation: but sin is a reproach to any people.”77 Thus, the linkage between the morality and virtue of the people and their collective safety and prosperity is a prominent theme in both modern and ancient Israel.

F. The American Founders Believed Virtue Is Instilled First and Best in the Marital Family

Marriage shaped the formation of the Constitution of the United States of America not only as a social force but also as a political ideol- ogy. The Founders of the United States had a strong “political view” of marriage. They believed that the marital family was the institutional foundation of republican government, the substructure upon which the superstructure of the system of the Constitution and laws rested.78 The Founders considered certain domestic habits or virtues (or, as de Tocqueville later called them, “habits of the heart”) as necessary “preconditions” for maintaining the constitutional Republic.79 These domestic habits included and were nurtured by marriage and the marital family. The Founders believed that marriages and families were

75. Deuteronomy 32:1–47 (King James). Likewise, at the conclusion of his prophetic life, Moses told the children of Israel, as they prepared to enter the land of promise: I call heaven and earth to record this day against you, that I have set before you life and death, blessing and cursing: therefore choose life, that both thou and thy seed may live: That thou mayest love the Lord thy God, and that thou mayest obey his voice, and that thou mayest cleave unto him: for he is thy life, and the length of thy days: that thou mayest dwell in the land which the Lordsware unto thy fathers, to Abraham, to Isaac, and to Jacob, to give them. Deuteronomy 30:19–20 (King James). 76. Joshua 1:7–8 (King James). 77. Proverbs 14:34 (King James). 78. See generally Lynn D. Wardle, The Bonds of Matrimony and the Bonds of Constitutional Democracy, 32 HOFSTRA L. REV. 349, 355–61 (2003) (reviewing role of marriage in republican theory). 79. See infra note 81 and accompanying text. See also DE TOCQUEVILLE, supra note 60, at 383 (referring to the “habits of the heart” as the American character traits which form the foundation for American democracy). Fall 2010] THE CONSTITUTION OF MARRIAGE 451 the first schoolrooms of democracy,80 the institutions in which essential civic virtue is inculcated.81 In the prevailing political theory of the founding era, the family was considered one of the essential “pillars of republican virtue,”82 and it not only needed to be nurtured but also protected. John Adams wrote: The foundation of national Morality must be laid in private Fami- lies . . . . How is it possible that Children can have any just Sense of the sacred Obligations of Morality or Religion if, from their earliest Infancy, they learn that their Mothers live in habitual Infidelity to their fathers, and their fathers in as constant Infidelity to their Mothers?83 Likewise, “George Mason argued that republican government was based on an affection ‘for altars and firesides.’ Only good men could be free; men learned how to be good in a variety of local institutions—by the firesides as well as at the altar.”84 In this, the Founders of the American Republic were merely re- flecting widely held republican precepts. Mary Lyndon Shanley wrote that Montesquieu suggested “that marriage and the form of government were mirrors of each other. Accepting that perspective, “Ameri- can revolutionaries and their descendants understood marriage and the family to be schools of republican virtue.”85

80. See generally Anne C. Dailey, Federalism and Families, 143 U. PA. L. REV. 1787, 1796, 1835–51 (1995) (discussing that virtues of citizenship are found through human relationships, such as parent and child, and noting that schools are an important place for children to acquire values); Gerald J. Russello, Liberal Ends and Republican Means, 28 SETON HALL L. REV. 740, 755–56 (1997) (critiquing PHILIP PETTIT, REPUBLICANISM: A THEORY OF FREEDOM AND GOVERNMENT (1997) for failing to recognize that “two significant pillars of republican virtue” were religion and the family). 81. Dailey, supra note 80, at 1835–51. See generally MATTHEW S. HOLLAND, BONDS OF AFFECTION: CIVIC CHARITY AND THE MAKING OF AMERICA—WINTHROP, JEFFERSON, AND LIN- COLN (2007) (noting the importance of the Founders’ views about civic virtue and private affections, especially charity, from the time of the Pilgrims through the time of Lincoln). 82. Russello, supra note 80, at 756. 83. 4 JOHN ADAMS, DIARY AND AUTOBIOGRAPHY OF JOHN ADAMS 123 (L.H. Butterfield et al. eds. 1962). 84. Bruce Frohnen, The Bases of Professional Responsibility: Pluralism and Community in Early America, 63 GEO. WASH. L. REV. 931, 946 (1995) (quoting George Mason, Opposition to a Unitary Executive (June 4, 1787), reprinted in THE ANTI-FEDERALIST PAPERS AND THE CONSTITUTIONAL CONVENTION DEBATES 47 (Ralph Ketcham ed., 1986)). 85. Mary Lyndon Shanley, Public Values and Private Lives: Cott, Davis, and Hartog on the History of Marriage Law in the United States, 27 LAW & SOC. INQUIRY 923, 926 (2002). See also NANCY F. COTT, PUBLIC VOWS: A HISTORY OF MARRIAGE AND THE NATION 10 (First Harvard Univ. Press ed. 2002) (noting that marriage paralleled a republican form of government, which gave rise to a relationship that shaped self-understanding and a new republican nation’s identity). 452 UNIVERSITY OF SAN FRANCISCO LAW REVIEW [Vol. 45

Marriage was closely linked to the cultivating and protecting of virtue in classic republican theory.86 Symbolically, the Founders had a clear political theory of marriage and family life as essential to the preservation of the new republican form of government that they had created. Professor Nancy Cott has observed that “[i]n the beginning of the United States, the founders had a political theory of marriage. So deeply embedded in political assumptions that it was rarely voiced as a theory, it was all the more important. It occupied the place where political theory overlapped with common sense.”87 For many leaders in the founding era, “marriage had several levels of political relevance, as the prime metaphor for consensual union and voluntary allegiance, as the necessary school of affection, and as the foundation of national morality.”88 Compared to other forms of marriage, Christian “[m]onogamy . . . stood for a government of consent, moderation, and political liberty.”89 The belief that polygamy bred “despotism, and coercion,” while the Christian marriage of monogamy fostered “political liberty, and consent . . . resonated through the political culture of the United States” not only during the founding decades but “all during the subsequent century.”90 This understanding of the connection between family life and the polis continued throughout the founding generation. Shortly after the founding, Alexis de Tocqueville, observed that in America, “[t]he feeling [a citizen] entertains towards the state is analogous to that which unites him to his family.”91 He also declared: There is certainly no country in the world where the tie of marriage is so much respected than in America or where conjugal happiness is more highly or worthily appreciated. . . . [T]he American derives from his own home that love of order which he afterwards carries with him into public affairs.92 Linda Kerber has written:

86. COTT, supra note 85, at 10. See also Dailey, supra note 80, at 1820 (“[S]tate sovereignty over family law preserves the constitutional ideal of citizenship by promoting the development of civic virtue . . . .”). 87. COTT, supra note 85, at 9. “The republican theory of the new United States . . . g[a]ve marriage a political reason for being.” Id. at 10. 88. Id. at 21. 89. Id. at 22. 90. Id. at 23. 91. 1 ALEXIS DE TOCQUEVILLE, DEMOCRACY IN AMERICA 94 (Alfred A. Knopf ed., 1966) (1835). 92. Id. at 304. Fall 2010] THE CONSTITUTION OF MARRIAGE 453

The Republican Mother’s life was dedicated to the service of civic virtue; she educated her sons for it; she condemned and corrected her husband’s lapses from it. If, as Montesquieu had maintained and it was commonly assumed, the stability of the nation rested on the persistence of virtue among its citizens, then the creation of virtuous citizens was dependent on the presence of wives and mothers who were well informed, “properly methodical,” and free of “invidious and rancorous passions.” . . . To that end the theorists created a mother who had a political purpose, and argued that her domestic behavior had a direct political function in the republic.93 These common ideas about family “had a dramatic ‘republican- izing’ effect” in society in the founding era.94 One consequence was unprecedented equality and respect for the roles of women in Ameri- can society. Historian Jan Lewis reports: “Revolutionary-era writers held up the loving partnership of man and wife in opposition to patri- archal dominion as the republican model for social and political relationships.”95 Michael Grossberg agreed: By charging homes with the vital responsibility of molding the private virtue necessary for republicanism to flourish, the new nation greatly enhanced the importance of women’s family duties. . . . At times “it even seemed as though republican theorists believed that the fate of the republic rested squarely, perhaps solely, on the shoulders of its womenfolk.”96 Perhaps the clearest description of the connection between the Constitution and family life that was perceived in the founding era came from an Austrian (Bohemian) social observer, Francis Grund, who came to America a decade before de Tocqueville, and was so im- pressed by what he saw that he decided to stay. Grund observed: I consider the domestic virtue of the Americans as the principal source of all their other qualities . . . . No government could be established on the same principle as that of the United States, with a different code of morals. The American Constitution is remarkable for its simplicity; but it can only suffice a people habitually correct in their actions; and would be utterly inadequate to the wants of a different nation. Change the domestic habits of the Americans, their religious devotion, and

93. Linda Kerber, The Republican Mother: Women and the Enlightenment—An American Perspective, 28 AM. Q. 187, 202 (1976). 94. THOMAS G. WEST, VINDICATING THE FOUNDERS: RACE, SEX, CLASS, AND JUSTICE IN THE ORIGINS OF AMERICA 103 (1997). 95. Id. (internal quotations omitted). A generation later, de Tocqueville recognized this when, contrasting the roles of women in American and Europe, he observed: “[T]he Americans . . . think of men and women as beings of equal worth, though their fates are different. . . . [A]lthough the American woman never leaves her domestic sphere, . . . nowhere does she enjoy a higher station.” Id. (alterations in original). 96. MICHAEL GROSSBERG, GOVERNING THE HEARTH: LAW AND THE FAMILY IN NINE- TEENTH-CENTURY AMERICA 7–8 (G. Edward White ed., 1985). 454 UNIVERSITY OF SAN FRANCISCO LAW REVIEW [Vol. 45

their high respect for morality, and it will not be necessary to change a single letter of the Constitution in order to vary the whole form of their government.97 Thus, the Framers and the founding generation perceived marriage as critical for the establishment and survival of the republican form of government they established.

G. Threads of Recognition of the Importance of Marriage in Israel The Founders of America have not been alone in recognizing the connection between strong families and a strong nation. Similarly, recognition of the importance of the healthy family to the survival of the state has repeatedly been noted by Israeli leaders, past and pre- sent.98 Just seven years ago, Justice Cheshin of the Israeli Supreme Court wrote: 46. We all agree—how could we do otherwise?—that a person, any person, has the right to marry and to have a family life. The covenant between a man and a woman . . . was created before the state existed and before rights and obligations came into the world . . . . “God created man . . . male and female He created them.” . . . A man needs a woman and a woman needs a man; “Wherefore a man shall leave his father and his mother and cling to his wife, and they shall be one flesh. Thus a covenant is made between a man and a woman, and when children are born the extended family comes into existence. In the course of all this, love develops. Thus, in so far as the family is concerned, the state found it ready made and extended its protection to what nature had dic- tated to us. Society and the state sanctified the covenant of the man and the woman in marriage . . . . Philosophers and thinkers may say what they wish . . . the existence of the family comes from God above, from nature, from man’s genetic makeup . . . . Such is the relationship between man and woman . . . . 47. The right to marry and to have a family life . . . is the basis for the existence of society. The family unit is the basic unit of human society . . . . Even though this right, the right to marry and to have a family life, has not been expressly included . . . in the

97. FRANCIS J. GRUND, THE AMERICANS IN THEIR MORAL, SOCIAL, AND POLITICAL RELA- TIONS 171 (1837); see also FRANCIS GRUND, ARISTOCRACY IN AMERICA 212–13 (Harper Torchbook ed. 1959) (1839). 98. Another time Amos was angry at Geula and Renana and hit them. Paula sent Amos to be spanked by his father, who was in the living room at the time. When Amos walked in, Ben-Gurion looked up at his son and said, “Amos, when I am old, one think I’ll regret is that I didn’t pay enough attention to you in your early life. But I have a mission to perform and I cannot divide my attention. So please, Amos, try to reduce the burden that I shall feel when I am old.” SILVERSTEIN, supra note 73, at 55 (quoting DANIEL KORZMAN, BEN-GURION: PROPHET OF FIRE 164 (1983)). Fall 2010] THE CONSTITUTION OF MARRIAGE 455

Basic Laws, we will all agree—agree and declare—that it is derived from the highest right of all, from human dignity.99 Thus, the Founders and modern leaders of Israel also have recognized the importance of the family for the integrity of the state.

II. The Foundational Significance of Marriage and Families Is Still Recognized Today It is still axiomatic that the family is the basic social unit of society. For example, the Universal Declaration of Human Rights recognizes that “[t]he family is the natural and fundamental group unit of society and is entitled to protection by society and the State.”100 As noted in Appendix I, similar statements about the foundational importance and specially protected role of families are found in dozens of other international conventions, compacts, and instruments,101 such as the International Covenant on Civil and Political Rights,102 the International Covenant on Economic, Social and Cultural Rights,103 the Convention on the Elimination of All Forms of Discrimination Against Women,104 the Hague Convention on the Civil Aspects of In-

99. HCJ 7052/03 Adalah v. Minister of Interior, 2006-1 Isr. L. Rep. 443 (2006), En- glish translation provided by The State of Israel Judicial Authority, available at http:// elyon1.court.gov.il/files_eng/03/520/070/a47/03070520.a47.pdf (upholding the consti- tutionality of the 2003 Citizenship and Entry into Israel Law (Temporary Provision)) (internal citations omitted). I am indebted to Professor Blecher-Prigat for bringing this to my attention and for providing me with a translation. 100. Universal Declaration of Human Rights, G.A. Res. 217 (III) A, U.N. Doc. A/Res/ 217(III), art. 16 (3) (Dec. 10, 1948). See generally Mary Ann Glendon, Knowing the Universal Declaration of Human Rights, 73 NOTRE DAME L. REV. 1153 (1998) (supporting the idea that the Universal Declaration of Human Rights recognizes the right of the family); Don Browning, The Meaning of Family in the Universal Declaration of Human Rights, in THE FAMILY IN THE NEW MILLENNIUM: WORLD VOICES SUPPORTING THE “NATURAL” CLAN 38 (A. Scott Loveless & Thomas B. Holman eds., 2007) (exploring the definition of family as defined by the Universal Declaration of Human Rights); Jane Adolphe, The Holy See and the Universal Declaration of Human Rights: Working Toward a Legal Anthropology of Human Rights and the Family, 4 AVE MARIA L. REV. 343 (2006) (supporting the Universal Declaration of Human Rights’ definition of family). 101. See Lynn D. Wardle, Federal Constitutional Protection for Marriage: Why and How, 20 BYU J. PUB. L. 439, 483 (2006) (listing thirty-five international treaties, charters, conventions and other instruments with provisions acknowledging the importance of families and/or marriage) [hereinafter Wardle, Constitutional Protection]. 102. International Covenant on Civil and Political Rights, G.A. Res. 2200A (XXI), U.N. doc. A/6316, art. 23, Dec. 16, 1966, 999 U.N.T.S. 171 (entered into force Mar. 23, 1976). 103. International Covenant on Economic, Social and Cultural Rights, G.A. Res. 2200A (XXI), U.N. Doc. A/6316, art. 10(1), opened for signature Dec. 19, 1966, 993 U.N.T.S. 3 (entered into force Jan. 3, 1976). 104. Convention on the Elimination of All Forms of Discrimination Against Women, G.A. Res. 34/180, U.N. Doc. A/34/46, opened for signature Dec. 18, 1979, 1249 U.N.T.S. 13 (entered into force Sept 3. 1981). 456 UNIVERSITY OF SAN FRANCISCO LAW REVIEW [Vol. 45 ternational Child Abduction,105 the Convention on the Rights of the Child,106 the European Convention for the Protection of Human Rights and Fundamental Freedoms,107 and the American Convention on Human Rights.108 Likewise, the national constitutions of most sovereign states contain similar declarations of the fundamental significance of the family and the duty of the state to protect it. The written constitutions of at least 145 of the 192 sovereign nations on the earth today (approxi- mately seventy-six percent) have language about the fundamental importance of the family and its special status in their national charters or constitutions, as shown in Appendix II.109 For example, the Consti- tution of Armenia provides: “The family is the natural and fundamental cell of society. Family, motherhood, and childhood are placed under the care and protection of society and the state.”110 The Consti- tution of Brazil provides: “The family, the foundation of society, en- joys special protection from the state.”111 The Constitution of China, similarly, declares: “Marriage, the family, and mother and child are protected by the state.”112 The Constitution of Iran declares: “Since the family is the fundamental unit of Islamic society, all laws, regula- tions, and pertinent programs must tend to facilitate the formation of a family, and to safeguard its sanctity and the stability of family relations on the basis of the law and the ethics of Islam.”113 It is also widely and historically acknowledged that conjugal marriage is the most secure foundation of the healthy family. The Leba- nese statesman and philosopher Charles Malik, who was one of the main drafters of the Universal Declaration of Human Rights, initially proposed language which clearly identified the well-understood relationship between marriage and family: “The family[,] deriving from marriage[,] is the natural and fundamental group unit of society. It is

105. The Hague Convention on the Civil Aspects of International Child Abduction, Oct. 25, 1980, T.I.A.S. No. 11670, 1343 U.N.T.S. 89 (entered into force Dec. 1, 1983). 106. Convention on the Rights of the Child pmbl., G.A. Res. 44/25, U.N. Doc A/44/ 49, opened for signature Nov. 20, 1989, 1577 U.N.T.S. 3 (entered into force Sept. 2, 1990). 107. European Convention on the Protection of Human Rights and Fundamental Freedoms art. 8, Nov. 4, 1950, 213 U.N.T.S. 222 (entered into force Sept. 3, 1953). 108. American Convention on Human Rights art. 17, Nov. 22, 1969, 1144 U.N.T.S. 123 (entered into force July 18, 1978). 109. See Wardle, Constitutional Protection, supra note 102, at 479–82 (listing 137 nations with constitutional provisions relating to family and marriage in 2006). 110. ARM.CONST. art. 35. 111. CONSTITUIC ¸ AO˜ FEDERAL [C.F.] [CONSTITUTION] art. 226 (Braz.). 112. XIANFA [CONSTITUTION], art. 49 (2004) (China). 113. QANUNI ASSASSI JUMHURII ISLAMAI IRAN [CONSTITUTION] 1358 [1980]. Fall 2010] THE CONSTITUTION OF MARRIAGE 457 endowed by the Creator with inalienable rights antecedent to all posi- tive law and as such shall be protected by the State and Society.”114 While the description of the relationship between marriage, family, and social and political relations was commonly understood, “[t]he connection between marriage and family was deleted, principally out of the fear that it would stigmatize children born out of wedlock.”115 The portions of Malik’s language that became part of Article 16 of the Universal Declaration of Human Rights clearly convey the message, nonetheless. Article 16(1), which precedes the above-quoted language from Article 16(3) about the family being the fundamental group unit of society, provides: “Men and women of full age, without any limita- tion due to race, nationality or religion, have the right to marry and to found a family. They are entitled to equal rights as to marriage, during marriage, and at its dissolution.”116 At least eighty-three national constitutions (forty-three percent of all sovereign nations) contain language according special protection or status to marriage, as Appendix II also shows. Of them, at least forty-three nations, more than one-fifth of all sovereign nations, have constitutional provisions that protect the institution of marriage as a conjugal relationship only, as indicated in Appendix III.117 For example, the Constitution of Colombia declares that the family “is constituted . . . through the free decision of a man and woman to contract matrimony.”118 Japan’s Constitution declares that: “[m]arriage shall be based only on the mutual consent of both sexes.”119 The Constitu- tion of Lithuania provides that “[m]arriage shall be entered into upon the free consent of man and woman.”120 Poland’s Constitution declares that: “Marriage, being a union of a man and a woman . . . shall be placed under the protection and care of the Republic of Poland.”121 The Constitution of Ukraine, also explicitly provides: “Marriage is

114. Browning, supra note 100, at 39 (quoting JOHANNES MORSINK, THE UNIVERSAL DEC- LARATION OF HUMAN RIGHTS: ORIGINS, DRAFTING, AND INTENT 254 (1999)). 115. Id. 116. Universal Declaration of Human Rights, supra note 100, art. 16(1). 117. See Lynn D. Wardle, What Is Marriage?, 6 WHITTIER J. CHILD & FAM. ADVOC. 53, 103 (2006) (noting that thirty-two nations in 2006 had constitutional provisions defining marriage as a union of man and woman). 118. CONSTITUCION´ POLITICA´ DE COLOMBIA [C.P.] art. 42 (emphasis added). 119. NIHONKOKU KENPOˆ [KENPOˆ ] [CONSTITUTION], art. 24, para. 1 (Japan) (emphasis added). 120. LIETUVOS RESPUBLIKOS KONSTITUCIJA [CONSTITUTION], 1992, art. 38, para. 3 (Lith.). 121. POL.CONST. art. 18. 458 UNIVERSITY OF SAN FRANCISCO LAW REVIEW [Vol. 45 based on the free consent of a woman and a man.”122 These are just some examples of the nearly three-dozen provisions in national constitutions that unequivocally define marriage constitutionally as the union of a man and a woman. By contrast, as Appendix IV shows, only nine nations (less than five percent of all sovereign nations) have legalized same-sex marriage. None of them have explicit constitutional provisions redefining marriage (indeed no nation presently has this explicit language). However, interpretations of the national constitutions by judiciaries in two nations (Canada123 and South Africa124 arguably) mandated legalization of same-sex marriage (or its equivalent in South Africa). In nine nations the political branches have adopted same-sex marriage as a public policy choice.125 It is interesting to note that the Constitution of the United States of America has no constitutional provision protecting either marriage or families, though, as will be explained later, some general provisions have been interpreted to extend special protection to certain marital and family relations.126 Since the U.S. Constitution is the oldest cur- rently effective constitution of any nation,127 and the Bill of Rights— appended to the Constitution just two years later as part of the com- promise to secure ratification—is one of the oldest models for human rights protection, the absence of protection for marriage and families may seem unusual. There are several reasons for this gap in the U.S. Constitution. Constitutions tend to address the critical issues of the time at which the document was drafted, and at the time the U.S.

122. UKR.CONST. art. 51. 123. Halpern v. Canada (Att’y Gen.), [2003] 65 O.R. 3d 161 (Can. Ont. C.A.); Hen- dricks v. Quebec, [2002] R.J.Q. 2506 (Can. Que.); Barbeau v. British Columbia (Att’y Gen.), [2003] 12. B.C.L.R. 4th 1 (Can. B.C.) 124. Minister of Home Affairs v. Fourie, 2006 (3) BCLR 355 (CC). 125. See infra Appendix IV. 126. See supra note 36; infra notes 131–37 and accompanying text. 127. Israel is generally classified as one of a small handful of nations that has an “unwritten constitution,” notwithstanding the status of the Declaration of Independence. Barak Cohen, Empowering Constitutionalism with Text from an Israeli Perspective, 18 AM. U. INT’L L. REV. 585, 642 (2003); Daphne Barak-Erez, From Unwritten to a Written Constitution: The Israeli Challenge in American Perspective, 26 COLUM. HUM. RTS. L. REV. 309, 310 (1995). For some purposes and issues, the Torah might be considered as part of the Constitution of Israel. See Edward McWhinney, Book Review, 65 YALE L.J. 128, 129 (1955) (reviewing EMANUEL RACKMAN, ISRAEL’S EMERGING CONSTITUTION 1948–1951 (1955)) (During the founding of the modern state of Israel, orthodox religious leaders in the Constituent As- sembly of Israel “suggested that Israel’s Torah was her constitution, pointing out that the Torah provided not only doctrines for man’s spiritual guidance, but directives for every aspect of his individual and social existence as well.”) If so, America’s claim to having the oldest Constitution might be challenged. Fall 2010] THE CONSTITUTION OF MARRIAGE 459

Constitution was written in 1787, there was no issue about alternative family forms or same-sex marriage; conjugal marriage was universally accepted as the only form of marriage; and marital families were the only legitimate form of families in America.128 Likewise, an essential structural principle of the U.S. Constitution is federalism, under which the regulation of matters of marriage and family relations is primarily allocated to the states, and beyond the authority of the national government.129 Thus, for reasons of dispersal of governmental power, and the ubiquitous social consensus of the time, the U.S. Con- stitution (which predates the Universal Declaration of Human Rights by over 160 years) is less up-to-date than the constitutions that have been written in the past forty or fifty years. The difficulty of amending the Constitution also explains why no federal constitutional amendment protecting (male-female) marriage has been adopted. The U.S. Constitution can be amended to address contemporary issues, but only sixteen amendments have been adopted in the 217 years since the original Constitution and Bill of Rights were adopted.130 However, in a number of U.S. Supreme Court decisions, beginning nearly 150 years ago, and especially during the past eighty-five years, the Court has interpreted some of the general provisions of the Constitution to cover marriage and families in certain circumstances. For example, in Meyer v. Nebraska,131 the Supreme Court stated that the right of parents to rear and educate their children (in the German language, in this case) was a fundamental “liberty” specially protected by the Fourteenth Amendment.132 Justice McReynolds, the author of the Court’s opinion, opined: While this Court has not attempted to define with exactness the liberty thus guaranteed, the term has received much consideration and some of the included things have been definitely stated. With- out doubt, it denotes not merely freedom from bodily restraint but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to

128. Lynn D. Wardle, The Proposed Federal Marriage Amendment and the Risks to Federalism in Family Law, 2 U. ST. THOMAS L.J. 137, 153–54 (2004) [hereinafter Wardle, The Proposed Federal Marriage Amendment]. 129. Id. at 167–73, 185–94; Lynn D. Wardle, Tyranny, Federalism and the Federal Marriage Amendment, 17 YALE J.L. & FEMINISM 221, 224–37 (2005). See generally Lynn D. Wardle, Les- sons from the Bill of Rights About Constitutional Protection for Marriage, 38 LOY. U. CHI. L.J. 279, 306 (2007) (noting that “[f]ederalism is intended as a structural protection against the concentration of power.”). 130. Wardle, The Proposed Federal Marriage Amendment, supra note 128, at 144. 131. 262 U.S. 390 (1923). 132. Id. at 400. 460 UNIVERSITY OF SAN FRANCISCO LAW REVIEW [Vol. 45

the dictates of his own conscience, and generally to enjoy those privileges long recognized at common law as essential to the or- derly pursuit of happiness by free men.133 This line of cases protects (but does not redefine) the fundamental right to marry,134 certain aspects of parent-child relations,135 and some extended family relations.136 However, the nature of those family rights is not clearly defined and the substance of those family rights is not explained in the written text of the Constitution; it is only expressed through the very controversial and subjective doctrine of substantive due process.137 The current movement to legalize same-sex marriage in the United States has been driven primarily by judicial interpretations of state constitutional provisions that have counterparts in federal constitutional doctrine.138 This movement has generated a counter-move-

133. Id. at 399 (emphasis added). 134. Loving v. Virginia, 388 U.S. 1 (1967) (striking down anti-miscegenation laws); Zablocki v. Redhail, 434 U.S. 374 (1978) (striking down economic restrictions on marriage); Turner v. Safley, 428 U.S. 78 (1987) (striking down prison prohibitions of marriage). 135. Wisconsin v. Yoder, 406 U.S. 205 (1972). See Pierce v. Soc’y of Sisters, 268 U.S. 510 (1925); but cf. Prince v. Massachusetts, 321 U.S. 158 (1944) (upholding the conviction of a child’s guardian who violated the law by allowing the child to work in violation of Massa- chusetts’s child labor law); Troxel v. Granville, 530 U.S. 57 (2000) (striking down a Wash- ington statute that allowed visitation rights to any person with court approval since it violated substantive due process rights of the mother). 136. Moore v. City of E. Cleveland, 431 U.S. 494 (1977). 137. See Richard B. Saphire & Paul Moke, Litigating Bush v. Gore in the States: Dual Voting Systems and the Fourteenth Amendment, 51 VILL. L. REV. 229, 273 (2006) (noting “the controversial nature of substantive due process in general, . . . its mushiness, and . . . that it is often thought to reduce to the subjective values of the judge.”); The Supreme Court 1997 Term Leading Cases, 112 HARV. L. REV. 122, 202 (1996) (noting that substantive due process is “controversial and politically charged”); Bradley M. Campbell, Comment, Excessive Force Claims: Removing the Double Standard, 53 U. CHI. L. REV. 1369, 1382 (noting that substantive due process doctrine is controversial because it “veils subjective judicial preferences”). 138. The modern movement for same-sex marriage can be dated from 1993, when the Supreme Court of Hawaii hinted, without holding, that equality provisions of the state Constitution of Hawaii might be interpreted to mandate the legalization of same-sex marriage. Baehr v. Lewin, 852 P.2d 44, 67 (Haw. 1993). See also Baehr v. Miicke, CIV. No. 91- 1394, 1996 WL 694235 (Haw. Cir. Ct. Dec. 3, 1996) (ordering state to issues marriage licenses to same-sex couples); Brause v. Bureau of Vital Statistics, No. 3AN-95-6562, 1998 WL 88743, at *6 (Alaska Super. Ct. Feb. 27, 1998) (Alaska Constitution appears to mandate same-sex marriage). In three states, judicial decisions interpreted state constitutions to mandate legalization of same-sex marriage. Goodridge v. Dep’t of Pub. Health, 798 N.E.2d 941 (Mass. 2003) (mandating marriage-equivalent unions for same-sex couples); In re Op. of the Justices to the Senate, 802 N.E.2d 565, 569–71 (Mass. 2004) (civil unions with same rights and benefits but without the title “marriage” would not be equal to marriage); In re Marriage Cases, 183 P.3d 384 (Cal. 2008) (mandating same-sex marriage be legalized because domestic partnership with same rights and benefits, but without the title “marriage,” is not equal to marriage) superseded by constitutional amendment by Proposition 8 (2008)); Fall 2010] THE CONSTITUTION OF MARRIAGE 461 ment at the state level in the form of proposed constitutional amendments to protect conjugal marriage against redefinition by judicial interpretation. As Appendix V shows, this “marriage protection” movement has resulted in the adoption of constitutional amendments in thirty of the fifty states (most have been adopted in the past ten years) defining marriage as the union of a man and a woman. It is also noteworthy that only one of the 564 recognized American Indian tribes today permits same-sex marriage.139 In fact, some tribes have explicitly prohibited same-sex unions.140 Proposals for a Federal Marriage Amendment to the U.S. Consti- tution have been introduced in Congress and voted on twice, most recently in 2006. The 2006 proposal garnered a majority of votes in

Varnem v. Brien, 763 N.W.2d 862 (Iowa 2009) (mandating legalization of same-sex marriage in Iowa). See also Strauss v. Horton, 207 P.3d 48 (Cal. 2009) (finding Proposition 8 did not violate the California Constitution); Perry v. Schwarzenegger, 702 F. Supp. 2d 1132 (N.D. Cal. 2010), appeal filed, No. 10-16696 (9th Cir. argued Dec. 6, 2010) (federal district court invalidation of Proposition 8 and mandating legalization of same-sex marriage in some California jurisdictions); Li v. State, No. 0403-0357, 2004 WL 1258167 (Or. Cir. April 20, 2004), rev’d, 110 P.3d 91 (Or. 2005) (reversing ruling mandating same-sex marriage); Andersen v. King Cnty., No. 04-2-04964-4-SEA, 2004 WL 1738447, at *3, 4, 11 (Wash. Super. Ct. Aug. 4, 2004) rev’d 138 P.3d 963 (Wash. 2006) (reversing ruling mandating same-sex marriage); Castle v. State, No. 04-2-00614-4, 2004 WL 1985215, at *11 (Wash. Super. Sept. 07, 2004) rev’d 138 P.3d 963 (Wash. 2006) (reversing ruling striking state DOMA and mandating same-sex marriage); Hernandez v. Robles, 855 N.E.2d 1 (N.Y. 2006) (reversing ruling mandating same-sex marriage); Conway v. Deane, 932 A.2d 571 (Md. 2007) (reversing unreported Baltimore Circuit Court ruling mandating same-sex marriage); Baker v. State, 744 A.2d 864 (Vt. 1999) (mandating at least marriage-equivalent same-sex unions); Lewis v. Harris, 908 A.2d 196 (N.J. 2006) (mandating at least marriage- equivalent same-sex unions). 139. Julie Bushyhead, The Coquille Indian Tribe, Same-Sex Marriage, and Spousal Benefits: A Practical Guide, 26 ARIZ. J. INT’L & COMP. L. 509, 509 (2009) (Coquille tribe first and only Indian tribe to allow same-sex marriage). For the number of federally-recognized Indian tribes see Indian Entities Recognized and Eligible to Receive Services from the United States Bureau of Indian Affairs, 74 Fed. Reg. 40,218, 40,219–23 (Aug. 11, 2009) (including entities of Alaska Native Americans). See generally Matthew L.M. Fletcher, Same-Sex Marriage, Indian Tribes, and the Constitution, 61 U. MIAMI L. REV. 53 (2006) (discussing the impact that an amendment to the U.S. Constitution regarding same-sex marriage might have on tribal sovereignty and the exercise of tribal government authority). 140. In 2004, the Cherokee Nation Tribal Council unanimously passed a law banning same-sex marriages. . . . On April 22, 2005, the Navajo Nation Council over- whelmingly passed the Dine´ Marriage Act of 2005, prohibiting same-sex marriages. . . . On May 1, 2005, Navajo Nation President Joseph Shirley, Jr., ve- toed the bill . . . . On June 3, 2005, the Navajo Nation Council overrode the President’s veto. Angela R. Riley, (Tribal) Sovereignty and Illiberalism, 95 CALIF. L. REV. 799, 837 n.284 (2007). The federal Defense of Marriage Act, 28 U.S.C. § 1738C (2006), allows states and Indian tribes to decline recognition of same-sex unions treated as marriages from any other state or Indian tribe. 462 UNIVERSITY OF SAN FRANCISCO LAW REVIEW [Vol. 45 both the House of Representatives and the Senate but fell far short of the two-thirds vote needed to send a proposed amendment to the states for consideration (three-fourths of the states must ratify an amendment to make it become part of the Constitution).141 Thus, there is some incomplete constitutional protection for marriage and families in the United States, but there is a grassroots movement to protect marriage as the union of a man and a woman that already is predominant and continues to grow.142

III. The Institution of Marriage Is Seriously Threatened Today, Especially by the Campaign to Legalize Same-Sex Marriage Anyone interested in creating and perpetuating any kind of lasting community must be very concerned about marriage and families, for they are the seedbeds in which community identity, values, mission, and meaning are sown and nurtured.143 This is not just important at the time of a nation’s founding, but this is critical for the ongoing perpetuation from generation to generation of any kind of community, including a political-legal community (a polis).144 Families are the cells that contain the DNA of any community. When those cells significantly change, or become sick and wither, or when the DNA begins to mutate, the life of the community as a living organism is endangered.145

A. Many Centrifugal Forces Threaten Marriage and Family Today As a social institution, marriage is alterable. Both social changes and legal changes can influence the constitution of marriage in society.

141. Wardle, Constitutional Protection, supra note 101, at 442–47 (noting the legislative history of the Federal Marriage Amendment). 142. Sixty percent of the states have adopted constitutional marriage amendments in less than fifteen years, and the last time the issue of same-sex marriage was on a ballot, in 2009 in Maine, voters passed a “People’s veto” to overturn the legislature’s legalization of same-sex marriage there. Scott L. Cummings & Douglas NeJaime, Lawyering for Marriage Equality, 57 UCLA L. REV. 1235, 1325–27 nn.574–84 (2010); Nelson Tebbe & Deborah A. Widiss, Equal Access and the Right to Marry, 158 U. PA. L. REV. 1375, 1385 n.46 (2010). 143. See supra Parts I.A.–I.C. 144. See Wardle, The Morality of Law, supra note 37. 145. WILLIAM J. GOODE, WORLD CHANGES IN DIVORCE PATTERNS 335–36 (1993) (“[T]he current trend toward a lesser investment of people in the collectivity of the family cannot continue indefinitely, because if the family as a social agency fails to function reasonably well, the economy—and the society as a whole—cannot do so either.”). Fall 2010] THE CONSTITUTION OF MARRIAGE 463

The institutions of marriage and family are under tremendous pressures today from a variety of social changes. Ironically, as external conditions in most of the world improve (health, morbidity, mortality, education, income, wealth, political freedoms, equality, economic op- portunity, etc.), the accompanying social changes seem to have weak- ened and pulled marriages and families apart.146 In these times of increasing individualism, isolation, and alienation in post-industrial societies,147 family bonds and relations are also waning.148 Robert Putnam famously noted that the amount of time families spend together eating family meals has dramatically declined in modern America, as has family attendance at religious services and even families watching television together.149 More seriously, family integrity has declined as centrifugal forces such as childbearing out-of- wedlock, non-marital cohabitation, and divorce have increased, frag- menting families.150 The decline in family integrity is accompanied by and associated with a decline in civic participation and community life.151 The relationship between family disintegration in loss of civic commitment is complex, but undeniably there is a significant relationship.152

146. See generally Lynn D. Wardle, Threats and Challenges to the Family in the Twenty-first Century, in THE FAMILY: AT THE CENTER OF HUMAN DEVELOPMENT 41, (Rene Q. Bas ed., 2001). 147. See, e.g., ROBERT D. PUTNAM, BOWLING ALONE: THE COLLAPSE AND REVIVAL OF AMER- ICAN COMMUNITY (2000) [hereinafter PUTNAM, BOWLING ALONE]; R OBERT D. PUTNAM, MAK- ING DEMOCRACY WORK (1993) (exploring the importance of civic community in developing successful institutions); Michael J. Shapiro, Post-Liberal Civil Society and the Worlds of Neo- Tocquevillean Social Theory, in SOCIAL CAPITAL: CRITICAL PERSPECTIVES ON COMMUNITY AND “BOWLING ALONE” 99, 111 (Scott L. McLean, David A. Schultz & Manfred B. Steger eds., 2002) (describing alienation of African-American community). 148. Bruce C. Hafen, Individualism and Autonomy in Family Law: The Waning of Belonging, 1991 BYU L. REV. 1, 17–21, 31–34 (the importance of interdependence and loss of sense of belonging as families disintegrate). 149. PUTNAM, BOWLING ALONE, supra note 147, at 100–01. 150. See generally Lynn D. Wardle, Is Marriage Obsolete?, 10 MICH. J. GENDER & L. 189, 196–99 (2003) (summarizing data on children born out-of-wedlock, cohabitation, and divorce) [hereinafter Wardle, Is Marriage Obsolete?]. 151. PUTNAM, BOWLING ALONE, supra note 147, at 133 (explaining the loss of civic spirit and commitment). 152. Compare Hafen, supra note 148, at 35 (noting that long-term belonging “appears to be discouraged by such normatively formal sources as law.”), and BRUCE C. HAFEN & MARIE K. HAFEN, THE BELONGING HEART: THE ATONEMENT AND RELATIONSHIPS WITH GOD AND FAMILY, at xi (1994) (stating that a growing assumption in American culture is to separate ourselves from each other), with Scott L. McLean, Patriotism, Generational Change, and the Politics of Sacrifice, in SOCIAL CAPITAL: CRITICAL PERSPECTIVES ON COMMUNITY and Putnam, Bowling Alone, supra note 147, at 147, 155 (“Putnam sees the family bound together by affection and identity rather than by interest, more so than other types of association, and thus he sees it as fundamentally a private institution. Hence, for Putnam the family, while a 464 UNIVERSITY OF SAN FRANCISCO LAW REVIEW [Vol. 45

Significant increases in the rates of childbearing out of wedlock, non-marital cohabitation, and continued high rates of divorce and abortion, for example, create serious challenges to the integrity of many marriages and families and threaten heartache and deprivation to numerous individuals and families who must cope with the consequences of these self-defeating, often pathological phenomena.153 But these challenges (divorce, out-of-wedlock childbearing, etc.) have been with us throughout human history. They are not new. While they threaten the integrity of marriages and families, until they reach a critical mass (which we may be approaching in the West), they do not severely threaten either the meaning or the institution of marriage itself.

B. The Movement to Legalize Same-Sex Marriage Is the Gravest Threat to Marriage One current legal movement, however, directly threatens the institutional integrity of marriage itself. Proposed radical changes in the definition and meaning of marriage to include same-sex couples in the legal institution of marriage would entail profound consequences for the social and moral constitution of a legal community and for the legal Constitutions of contemporary western liberal democracies. Since law closely regulates the social institution of marriage, changes in the law can affect changes in the social institution of marriage. Legalizing same-sex marriage will change the meaning and morality of the social institution of marriage through “the transformative power of inclusion.”154 Same-sex relationships differ in profound and critical ways from conjugal marital relationships.155 When same-sex marriage is legalized, the moral qualities of homosexual relations and powerful institution shaping moral life, and a prime example of ‘bonding’ social capital, simply lacks sufficient power to revitalize civil society in the direction he thinks is necessary . . . . What is most desperately needed, he says, is not more ‘bonding’ social capital—of the sort seen in ‘identity’ groups and families—but instead much more social capital of the ‘bridging’ sort, which occurs outside the family.”), and PUTNAM, BOWLING ALONE, supra note 147, at 279 (“[A]part from youth- and church-related engagement, none of the major declines in social capital and civic engagement . . . can be accounted for by the decline of traditional family structure.”). 153. Wardle, Is Marriage Obsolete?, supra note 150, at 196–216. 154. Wardle, The Morality of Law, supra note 37, at 208, 226 (internal quotations omitted). 155. George W. Dent, Jr., Straight Is Better: Why Law and Society May Legitimately Prefer Heterosexuality 22 (Case Western Reserve Univ., Sch. of Law, Case Research Paper Series in Legal Studies, Working Paper 2010–22, July 2010), available at http://ssrn.com/abstract= 1649574. Fall 2010] THE CONSTITUTION OF MARRIAGE 465 lifestyles will become part of, and will have an altering effect upon, the qualities and characteristics of the institution of marriage. Making legal marriage more like homosexual relations will seriously harm society, families, and individuals.156 The moral and relational expectations of gays and lesbians differ drastically from married men and women.157 For example, promiscuity, infidelity, multiple sexual partners, dangerous sexual practices, and instability are the behavioral norms among gay couples (and also, to a clear but lesser extent, among lesbian couples), rather than monogamy and sexual self-control which are the norms fostered by and nurtured in heterosexual marriages.158 A study by Dutch AIDS researchers, published in 2003 in the jour- nal AIDS, reported on the number of partners among Amsterdam’s homosexual population.159 They found: • 86 percent of new HIV/AIDS infections in gay men were in men who had steady partners. • Gay men with steady partners engage in more risky sexual be- haviors than gays without steady partners. • Gay men with steady partners had eight other sex partners (“casual partners”) per year, on average. • The average duration of committed relationships among gay steady partners was 1.5 years.160 Likewise, a study of 2,583 older sexually active gay men reported that “the modal range for number of sexual partners ever was 101–500,” while 10.2 percent to 15.7 percent had between 501 and 1,000 partners, and another 10.2 percent to 15.7 percent reported having had more than one thousand sexual partners in their life- time.161 Other researchers theorize that “the cheating ratio of ‘married’ gay males, given enough time, approaches 100%.”162

156. Wardle, The Morality of Law, supra note 37, at 208, 226–28. 157. Id. 158. For example, see Scott James, Many Successful Gay Marriages Share an Open Secret, N.Y. Times, Jan. 29, 2010, http://www.nytimes.com/2010/01/29/us/29sfmetro.html. 159. Maria Xiridou, et al., The Contribution of Steady and Casual Partnerships to Incidence of HIV Infection Among Homosexual Men in Amsterdam, 17 AIDS 1029 (2003), available at http:// journals.lww.com/aidsonline/Fulltext/2003/05020/The_contribution_of_steady_and_cas- ual_partnerships.12.aspx. 160. Id. at 1029–31. 161. Paul Van de Ven, et al., A Comparative Demographic and Sexual Profile of Older Homosexually Active Men, 34 J. SEX RES. 349, 354 (1997). 162. MARSHALL KIRK & HUNTER MADSEN, AFTER THE BALL: HOW AMERICA WILL CON- QUER ITS FEAR AND HATRED OF GAYS IN THE ‘90S, at 330 (1990). The authors assume that “at least two thirds of married men are, at one time or another, unfaithful to their wives.” Id. 466 UNIVERSITY OF SAN FRANCISCO LAW REVIEW [Vol. 45

Thus, redefining marriage to include gay and lesbian relationships will have a profound impact upon fidelity, promiscuity, sexual morality, and public health in the institution of marriage. Moral stan- dards and behavioral expectations in marriage will change as homosexual relations are deemed marital relations. The attempt to legalize same-sex marriage or give equivalent legal status and benefits to same-sex couples constitutes a very real and dangerous challenge to the institution of conjugal marriage. Defining marriage to include homosexual couples will alter the meaning and moral message of our most basic social institution. Therefore, it should come as no surprise that recent research has documented a clear, inverse relationship between legalization of same-sex unions and support for marriage and families. Reviewing studies based on interviews with 50,000 adults in thirty-five nations, David Blankenhorn reports: The correlations are strong. Support for marriage is by far the weakest in countries with same-sex marriage. The countries with marriage-like civil unions show significantly more support for marriage. The two countries with only regional recognition of gay marriage (Australia and the United States) do better still on these support-for-marriage measurements, and those without either gay marriage or marriage-like civil unions do best of all.163 Thus, serious political consequences attend the legalization of same-sex marriage and marriage-like unions. The connection between the social constitution of marriage and the legal Constitution of a society remains strong and important. We neglect it at our peril.

Conclusion Anthropologist David W. Murray noted: “[m]arriage is a society’s cultural infrastructure.”164 Marriage is the well-spring of social capital

But this estimate is inflated; the more reliable indications are that about twenty-one percent of married men cheat at least once during their marriage. Tom W. Smith, American Sexual Behavior: Trends, Socio-Demographic Differences and Risk Behavior, NAT’L OPINION RES. CENTER, tbl.7 (Dec. 1998), http://cloud9.norc.uchicago.edu/dlib/t-25.htm. Likewise, An- drew Sullivan contrasts male-female marriages with same-sex relationships and explains, “there is more likely to be a greater understanding of the need for extramarital outlets between two men than between a man and a woman.” ANDREW SULLIVAN, VIRTUALLY NOR- MAL: AN ARGUMENT ABOUT HOMOSEXUALITY 202 (1995). 163. David Blankenhorn, Defining Marriage Down . . . is No Way to Save It, WKLY. STAN- DARD, Apr. 2, 2007, at 2, http://www.weeklystandard.com/Content/Public/Articles/000/ 000/013/451noxve.asp. See also DAVID BLANKENHORN, THE FUTURE OF MARRIAGE (2007) (analyzing marriage through an approach blending history with anthropology). 164. David W. Murray, Poor Suffering Bastards: An Anthropologist Looks at Illegitimacy, POL’Y REV., Spring, 1994, at 9. Fall 2010] THE CONSTITUTION OF MARRIAGE 467 in any community or polis. Social capital consists of the intangible re- sources and assets that contribute to a strong society, economy, and nation; economists emphasize the trust that facilitates exchange,165 while sociologists and others note that there are other attributes of social capital as well such as engagement, willingness to serve, and charity.166 We need marriage and marital families to generate and sus- tain communities. Murray also wrote: “The history of human society shows that when people stop marrying, their continuity as a culture is in jeop- ardy.”167 When the meaning of marriage is so radically altered that same-sex sexual relationships are deemed a marriage, people will have stopped marrying, even if they continue to get licenses and have ceremonies. All legal institutions and political societies are built upon constitutive social units that are organized into or function as constitutive institutions. Marital families are the constitutive institutions of free, democratic, and healthy societies.168 A political society or legal system could be organized based on other social units, but none of those societies or systems will survive very long, preserve freedom very well, or perpetuate democracy effectively. The constitutive institutions, structures, and processes are more foundational, more basic than the legal-political superstructure that rests and is built upon them.

165. The literature on social capital defines it a number of ways, but the essential element is an association between people, either formal or informal, which facilitates trade through ‘trust.’ Trust potentially lowers the cost of trading through a number of mechanisms: information on exogenous types, coordination resolu- tion, and reinforcement of social and personal mores. Douglas W. Allen & Clyde G. Reed, The Duel of Honor: Screening for Unobservable Social Capi- tal, 8 AM. L. & ECON. REV. 81, 86 n.9 (2006). See also Douglas W. Allen, Theocracy as a Screening Device, in THE POLITICAL ECONOMY OF THEOCRACY 181, 185 (Mario Ferrero & Ron- ald Wintrobe eds., 2009) (“Social capital is also acquired through education, marriage, business connections, and family history. Social capital is often difficult to observe, because it depends on the quality of the interpersonal associations.”); James Coleman, Social Capital in the Creation of Human Capital, 94 AM. J. SOC. S95, S95 (1988) (“The conception of social capital as a resource for action is one way of introducing social structure into the rational action paradigm.”). 166. See, e.g., Robert D. Putnam, Tuning, In, Tuning Out: The Strange Disappearance of Social Capital in America, 28 PS: POL. SCI. & POL. 664, 671 (1995) (“[M]arried men and women are about a third more trusting and belong to about 15–25% more groups than comparable single men and women.”). 167. Murray, supra note 164, at 9. 168. See supra Part I. 468 UNIVERSITY OF SAN FRANCISCO LAW REVIEW [Vol. 45

Change those foundational institutions, processes and structures, and you will change the superstructure itself.169 Not all foundational institutions are the same, especially for the function of forming the constitution of political societies. Institutions are linked to and generate certain procedures and norms; different institutions generate different procedures and norms. Form is substance, the medium is the message, and constitutive institutions embody and promote normative principles and values. In the quest to cultivate and establish the process of “consent of the governed” and the norm that “all men [humankind] are created equal . . . [and entitled to] Life, Liberty and the pursuit of Happi- ness,”170 one must lay the foundation upon that institution that is most surely linked to those principles, the institution that will most effectively and successfully nurture that political process, and that principle of basic human rights. That institution is dual-gender marriage. Democracy is one process and form of political institution. The equal worth and dignity of all human beings is one normative value associated with democratic institutions and processes. Separation of powers, federalism, and limited government (boundaries and checks) are three other (and related) processes and forms of governmental institutions. Liberty and responsibility are basic values associated with and nurtured by separation of powers and federalist governmental structures, forms, and processes. All are linked to and reflect the foundational constitutive institutions. Alter the constitutive foundational institutions, and the governmental superstructure cannot remain intact. The marital family—the family based upon conjugal marriage—is the form of family most surely linked to democracy and the values of equal human worth and human dignity. The marital family—the family based upon conjugal marriage—also is the family form most closely aligned with separation of powers and federalism. The conjugal marital family is the most secure foundation for the generation and protection of the important governmental principles, values, and basic human rights of equality, human dignity, liberty, and responsibility. Protecting that essential social unit against erosion from cultural tides is a major scholarly responsibility, as well as an important civic concern for—and responsibility of—all citizens.

169. See Hart & Sachs, supra note 16, at 256–57 (explaining how institutionalized procedures develop in an organized society). 170. THE DECLARATION OF INDEPENDENCE para. 2 (U.S. 1776). Fall 2010] THE CONSTITUTION OF MARRIAGE 469

Appendix I

Some International Treaties, Charters, Conventions, and Other Legal Documents with Provisions Concerning Marriage and/or Families171 • Convention Relating to the Status of Refugees • Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery • International Convention on the Elimination of all Forms of Racial Discrimination • Convention on Consent to Marriage, Minimum Age for Mar- riage and Registration of Marriages • Recommendation on Consent to Marriage, Minimum Age for Marriage and Registration of Marriages • International Covenant on Civil and Political Rights • International Covenant on Economic, Social and Cultural Rights • Convention on the Elimination of All Forms of Discrimination against Women • Hague Convention on the Civil Aspects of International Child Abduction • Convention on the Rights of the Child • European Convention for the Protection of Human Rights and Fundamental Freedoms • American Convention on Human Rights • American Declaration of the Rights and Duties of Man • Conference on Security and Co-operation in Europe, Final Act (Helsinki Accord) • African Charter on Human and Peoples’ Rights (Banjul Charter) • African Charter on the Rights and Welfare of the Child • Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa • Geneva Declaration of the Rights of the Child of 1924 • United Nations General Assembly Universal Declaration of Human Rights

171. Research originally compiled by research assistants Scott Borrowman, J.D., BYU Law School, Class of 2005, and Joseph Wright, J.D., University of Kansas School of Law, Class of 2007. 470 UNIVERSITY OF SAN FRANCISCO LAW REVIEW [Vol. 45

• Declaration of the Rights of the Child • Proclamation of Teheran • Declaration on Social Progress and Development • Declaration on the Rights of Mentally Retarded Persons • Declaration on the Protection of Women and Children in Emergency and Armed Conflict • Declaration on the Rights of Disabled Persons • Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief • International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families • Cairo Declaration on Human Rights in Islam • Declaration on the Elimination of Violence against Women • Draft Declaration on the Rights of Indigenous Peoples • Beijing Declaration and Platform for Action, Fourth World Conference on Women • Proposed American Declaration on the Rights of Indigenous Peoples Fall 2010] THE CONSTITUTION OF MARRIAGE 471

Appendix II

One Hundred Forty-Six Foreign Jurisdictions with Constitutions Including Provisions Relating to Family and Marriage Including at Least Eighty-Three National Constitutions with Substantive Protections of Marriage172 All references are to the Constitution of the respective nation. An asterisk (*) means that the Constitution refers to or protects both marriage and family; no asterisk means the Constitution refers to family, but not explicitly to marriage.

Afghanistan AFG. CONST. art. 54 Albania* ALB. CONST. arts. 31, 32, 53, 54 Algeria ALG. CONST. arts. 48, 58, 63 Andorra* ANDORRA CONST. art. 13 Angola* ANGL. CONST. arts. 29, 30, 31, 40 Antigua & Barbuda ANT. & BARB. CONST. arts. 3 Argentina (Argentine Republic) Arts. 14bis(3), 20, CONSTITUCION´ NACIONAL [Const. Nac.] Armenia* ARM. CONST. arts. 23, 34, 35, 48 Australia* AUSTRALIAN CONSTITUTION s 51(xxi–xxiiA) Austria, Republic of* BUNDES-VERFASSUNGSGESETZ [B-VG] [CONSTITUTION] BGBI NO. 1/1930, as last amended by Bundesverfassungsgesetz [BVG] BGBI I No. 2/2008, art. 10 ¶ 1 Azerbaijan* AZER. CONST. arts. 17, 32(2), 34, 38, 127(5) Bahrain* BAHR. CONST. art. 5 Barbados BARB. CONST. prmbl. Belarus* BELR. CONST. arts. 16, 27, 32, 97(2) Belize BELIZE CONST. prmbl.(a), arts. 3(c), 14(1) Belgium, Kingdom of* 1994 CONST. arts. 21, 22 Bhutan BHUTAN CONST. art. 7(19) Bolivia* BOL. CONST. arts. 19, 29, 45, 46, 59, 62, 63, 64, 130, 230 Bosnia-Herzegovina* BOSN. & HERZ. CONST. art. II (3) Brazil, Federative Republic of* CONSTITUIC ¸ AO˜ FEDERAL [C.F.] [CONSTITUTION] art. 226

172. Research compiled by research assistants Scott Borrowman, J.D., BYU Law School Class of 2005, Kevin J. Fiet, J.D., BYU Law School Class of 2006, Joseph Wright, J.D., Kansas University School of Law, Class of 2007, Malisa Whiting, J.D. BYU Law School Class of 2009, and updated and edited by Lynn D. Wardle in 2009. Puerto Rico, although a U.S. territory, is also included in this list. 472 UNIVERSITY OF SAN FRANCISCO LAW REVIEW [Vol. 45

Bulgaria* BULG. CONST. arts. 14, 46, 47 Burkina Faso* BURK. FASO CONST. art. 23 Cambodia* CAMBODIA CONST. art. 45 Cameroon CAMEROON CONST. prmbl. Canada* Constitution Act, 1982, 30 & 31 Vict., c. 3 (U.K.), arts. VI, sec. 91(26), VI, sec. 92(12) Cape Verde CAPE VERDE CONST. arts. 44, 84, 85, 86, 87 Central African Repub. CENT. AFR. REP. CONST. art. 6 Chad CHAD CONST. arts. 36, 37, 38 Chechnya (Chechen Republic) CHECHNYA CONST. arts. 20, 35, 36 Chile, Republic of CONSTITUCION´ POLITICA´ DE LA REPUBLICA´ DE CHILE [C.P.] art. 1 China, People’s Republic of* ZIANFA arts. 25, 49 (1982) Colombia , Republic of* CONSTITUCION´ POLITICA´ DE COLOMBIA [C.P.] arts. 5, 15, 42, 43, 44 Congo, Democratic Republic of DEM. REP. CONGO CONST. arts. 15, 18, the* 36, 40, 41 Costa Rica* COSTA RICA CONST. arts. 51, 52, 53 Croatia* COSTA RICA CONST. arts. 55, 61, 62, 63, 64 Cuba* CUBA CONST. arts. 35, 36, 37, 38, 44, 47 Cyprus* CYPRUS CONST. arts. 22, 111 Dominica DOMINCA CONST. prmbl. Dominican Republic DOM. REP. CONST. art. 15 East Timor (Democratic TIMOR-LESTE CONST. arts. 17, 36, Republic Of Timor-Leste)* 39, 58 Ecuador* ECUADOR CONST. arts. 37, 38, 39, 40 Egypt, Arab Republic of CONSTITUTION OF THE ARAB REPUBLIC OF EGYPT, 11 Sept. 1971, as amended, May 22, 1980, May 25, 2005, March 26, 2007, arts. 9, 10, 11 El Salvador* EL SAL. CONST. arts. 32, 33, 34 Equatorial Guinea* EQ. GUINEA CONST. prmbl., arts. 5, 21, 24 Eritrea* ERI. CONST. prmbl., art. 22 Estonia EST. CONST. arts. 24, 26, 27 Ethiopia* ETH. CONST. arts. 34, 35, 36 Fiji FIJI CONST. prmbl., art. 29 Finland FIN. CONST. sec. 19 Gabon* GABON CONST. prmbl. Gambia GAM. CONST. art. 27 Georgia* GEOR. CONST. art. 36 Germany, Federal Republic of* Gesetz zur Anderung¨ des Grundgesetzes [Law Amending Basic Law], July 29, 2009, BGBI. I, art. 6 Ghana GHANA CONST. art. 28 Greece* 1975 SYNTAGMA [SYN.] [CONSTITUTION] 9, 21, 93 Fall 2010] THE CONSTITUTION OF MARRIAGE 473

Guatemala GUAT. CONST. prmbl., arts. 1, 47, 56, 73, 102, 119 Haiti HAITI CONST. arts. 259, 260, 261* Honduras* HOND. CONST. arts. 111, 112, 113, 114 Hong Kong* XIANGGANG JIBEN FA art. 37 § 1 Hungary, Republic of* A MAGYAR KOZT¨ ARSAS´ AG´ ALKOTMANYA´ [CONSTITUTION OF THE REPUBLIC OF HUNGARY] arts. 15, 66, 67 Iceland ICE. CONST. art. 71 Indonesia INDON. CONST. arts. . 28B, 33 Iran, Islamic Republic of ISLAHAT VA TAQYYRATI VA TATMIMAH QANUNI ASSASSI [AMENDMENT TO THE CONSTITUTION] 1368 [1989] prmbl., arts. 10, 12, 21, 31, 43 Iraq, Republic of Articles 29, 30 Doustour Joumhouriat al- Iraq [The Constitution of the Republic of Iraq] of 2005 Ireland (Eire),´ Republic of* IR. CONST., 2002, art. 41 Italy, Republic of* Arts. 29, 30, 31, 36, 37 Constituzione [Cost.] Jamaica* JAM. CONST. art. 13, 24 Japan* NIHONKOKU KENPOˆ [KENPOˆ ] [CONSTITUTION], art. 24, paras. 1, 2* Kazakhstan KAZ. CONST. art. 18, 27 Kosovo KOS. CONST. arts. 36, 37 Kuwait KUWAIT CONST. art. 9 Kyrgyzstan KYRG. CONST. arts. 26, 39 Latvia LAT. CONST. art. 110* Lesotho LETHOSO CONST. arts. 4, 11, 30 Liberia* LIBER. CONST. arts. 16, 23 Libya LIBYA CONST. art. 3 Liechtenstein LIECH. CONST. art. 15 Lithuania* LITH. CONST. arts. 22, 31, 38, 39 Luxembourg* LUX. CONST. arts. 11, 21, 108 Macedonia* MACED. CONST. arts. 25, 40, 41 Madagascar MADAG. CONST. arts. 20, 21, 29 Malawi* MALAWI CONST. arts. 13, 22, 23, 24 Mali* MALI CONST. arts. 6, 70 Malta* MALTA CONST. §§ 32, 45 Mauritania MAURITANIA CONST. prmbl., art. 16 Mexico Constitucion´ Pol´ıtica de los Estados Unidos Mexicanos [C.P.], as amended, art. 3, 4, Diario Oficial de la Federacion´ [DO], 2007 Moldova MOLD. CONST. arts. 28, 48, 49 Mongolia* MONG. CONST. arts. 16, 17 Montenegro* MONTENEGRO CONST. arts. 40, 71, 73 Mozambique* MOZAM. CONST. arts. 42, 55, 56 Namibia* NAMIB. CONST. art. 14 Nauru NAURU CONST. prmbl. 474 UNIVERSITY OF SAN FRANCISCO LAW REVIEW [Vol. 45

Nicaragua* CONSTITUCION´ POLITICA´ DE LA REPUBLICA´ DE NICARAGUA [CN.] tit. IV, ch. I, arts. 24, 34, 39, ch. IV, arts. 70–79, LA GACETA, DIARIO OFICIAL [L.G.] 9 January 1987, as amended by Ley No. 330, Reforma Parcial a la Constitucion´ Pol´ıtica de la Republica´ de Nicaragua, Jan. 18, 2000, L.G. Jan. 19, 2000 Niger* NIGER CONST. art. 18 Nigeria* CONSTITUTION OF NIGERIA (1999), §§ 17, 262, 277 North Korea* N. KOREA CONST. art. 78 Oman OMAN CONST. art. 12 Pakistan, Islamic Republic of* PAKISTAN CONST. arts. 10, § 8; 35 Panama* PAN. CONST. arts. 52–59, 62, 63, 66, 91, 113 Papua New Guinea* PAPUA N.G. CONST. prmbl., art. 49 Paraguay* PARA. CONST. arts. 12, 30, 49–55, 57–61, 75, 92, 100 Peru* PERU CONST. arts. 4, 5, 7, 24 Philippines* CONST. (1987), art. XV, secs. 1–4 Poland* POL. CONST. arts. 18, 33, 41, 47–48, 71 Portugal (Portuguese PORT. CONST. arts. 26, 36, 65, 67, 68, 69, Republic)* 70, 71, 72 Puerto Rico P.R. CONST. art. 2, §§ 8, 20 Qatar QATAR CONST. arts. 21, 37 Romania* ROM. CONST. arts. 26, 48 Russian Federation KONSTITUTSIIA ROSSIISKOI FEDERATSII [KONST. RF] [CONSTITUTION] arts. 7, 23, 38 Rwanda* RWANDA CONST. arts. 24, 25 Saint Lucia ST. LUCIA CONST. prmbl., art. 1 Saint Vincent & the Grenadines ST. VINCENT CONST. prmbl. Saudi Arabia SAUDI ARABIA CONST. arts. 9, 10, 27 Senegal* SEN. CONST. arts. 17, 18, 19, 20 Serbia* SERB. CONST. arts. 61, 66, 69 Sierra Leone SIERRA LEONE CONST. art. 15 Slovakia* SLOVK. CONST. arts. 19, 41 Slovenia* SLOVN. CONST. art. 53 Somalia* SOM. CONST. art. 56 South Africa S. AFR. CONST., arts. 15, 28 South Korea* DAEHANMINKUK HUNBEOB [HUNBEOB] [CONSTITUTION] arts. 12, 36 Spain, Kingdom of CONSTITUCION´ ESPANOLA˜ , B.O.E. n. 311, Dec. 29, 1978, arts. 18, 35, 39 Sri Lanka SRI LANKA CONST. art. 27 (12) Sudan* SUDAN CONST. art. 15, 37 Suriname* SURIN. CONST. arts. 17, 35 Swaziland* SWAZ. CONST. arts. 14, 27, 60 Sweden* REGERINGSFORMEN [RF] [CONSTITUTION] 1:2, 8:2 Fall 2010] THE CONSTITUTION OF MARRIAGE 475

Switzerland* BUNDESVERFASSUNG [BV] [CONSTITUTION] Apr. 18, 1999, SR 101,arts 8, para. 3; 13, para. 1; 14, 41, para. 1; 116, paras. 1–4; 119, para. 2 Syria* SYRIA CONST. arts. 44, 46 Tajikistan* TAJ. CONST. arts. 33, 34 Thailand THAI. CONST. § 80 Togo* TOGO CONST. art. 31 Trinidad & Tobago TRIN. & TOBAGO CONST. prmbl., art. 4 Tunisia TUNIS. CONST. prmbl. Turkey TURK. CONST. arts. 20, 41, 62 Turkmenistan TURKM. CONST. art. 25* Tuvalu TUVALU CONST. art. 4 Uganda* UGANDA CONST. art. 31 Ukraine* UKR. CONST. arts. 32, 51, 52, 63 United Arab Emirates U.A.E. CONST. art. 15 Uruguay* URU. CONST. arts. 40, 41, 42. 43, 49 Uzbekistan* UZB. CONST. arts. 63, 64, 65, 66 Venezuela* VENEZ. CONST. arts. 60, 75, 76, 77, 78, 79, 80, 81, 82, 86, 91, 102 Vietnam* VIET. CONST. arts. 21, 31, 64 Yemen YEMEN CONST. art. 26 Zambia, Republic of CONST. OF ZAMBIA of 1991, (as amended by Act No. 18 of 1996) prmbl. 476 UNIVERSITY OF SAN FRANCISCO LAW REVIEW [Vol. 45

Appendix III

Forty-Three Sovereign Nations with National Constitutional Provisions/Amendments Protecting Conjugal Marriage (or Banning Same-Sex Marriage)173

Armenia ARM. CONST. art. 35 Azerbaijan AZER. CONST. art. 34 Belarus BELR. CONST. art. 32 Brazil, Federative Republic of CONSTITUIC ¸ AO˜ FEDERAL [C.F.] [CONSTITUTION] art. 226 Bulgaria BULG. CONST. art. 46 Burkina Faso BURK. FASO CONST. art. 23 Burundi BURUNDI CONST. art. 29 Cambodia CAMBODIA CONST. art. 45 Cameroon CAMEROON CONST. art. 16 China, People’s Republic of ZIANFA art. 49, §§1–4 (1982) Colombia, Republic of CONSTITUCION´ POLITICA´ DE COLOMBIA [C.P.] art. 42. Congo, Democratic Republic of DEM. REP. CONGO CONST. art. 40 the Cuba CUBA CONST. art. 36 Ecuador ECUADOR CONST. art. 38 Eritrea ERI. CONST. art. 22 Ethiopia ETH. CONST. art. 34 Gambia GAM. CONST. art. 27 Honduras HOND. CONST. art. 112 Japan NIHONKOKU KENPOˆ [KENPOˆ ] [CONSTITUTION], art. 24 Latvia LAT. CONST. art. 110 Lithuania LITH. CONST. art. 3 Malawi MALAWI CONST. art. 22 Moldova MOLD. CONST. art. 48 Mongolia MONG. CONST. art. 16 Montenegro MONTENEGRO CONST. art. 71 Namibia NAMIB. CONST. art. 14 Nicaragua CONSTITUCION´ POLITICA´ DE LA REPUBLICA´ DE NICARAGUA [CN.] tit. IV, ch. IV, art. 72, LA GACETA, DIARIO OFICIAL [L.G.] 9 January 1987, as amended by Ley No. 330, Reforma Parcial a la Constitucion´ Pol´ıtica de la Republica´ de Nicaragua, Jan. 18, 2000, L.G. Jan. 19, 2000

173. Research compiled by research assistants Scott Borrowman, J.D., BYU Law School, Class of 2005, Kevin J. Fiet, J.D., BYU Law School, Class of 2006, Joseph Wright, J.D., Kansas University School of Law, Class of 2007, Malisa Whiting, J.D. BYU Law School, Class of 2009, and Curtis Thomas, BYU Law School, Class of 2012, and updated and edited by Lynn D. Wardle in 2011. Fall 2010] THE CONSTITUTION OF MARRIAGE 477

Panama PAN. CONST. art. 58 Paraguay PARA. CONST. arts. 49, 51, 52 Peru PERU CONST. art. 5 Poland POL. CONST. art. 18 Rwanda RWANDA CONST. art. 26 Serbia SERB. CONST. art. 62 Seychelles SEY. CONST. art. 32 Sudan, Republic of the SUDAN INTERIM CONST. art. 15 Suriname SURIN. CONST. art. 35 Swaziland SWAZ. CONST. art. 27 Tajikistan TAJ. CONST. art. 33 Turkmenistan TURKM. CONST. art. 25 Uganda UGANDA CONST. art. 31 Ukraine UKR. CONST. art. 51 Venezuela VENEZ. CONST. art. 77 Vietnam VIET. CONST. art. 64 478 UNIVERSITY OF SAN FRANCISCO LAW REVIEW [Vol. 45

Appendix IV

Nine174 Sovereign Nations with Same-Sex Marriage

Argentina (Argentine Republic) Law No. 26618, Jul. 21, 2010, [CXVIII] B.O. 31949 Belgium, Kingdom of Loi ouvrant le mariage a` des personnes de memeˆ sexe et modifiant certaines dispositions du Code civil [Law Opening Marriage to Same-sex Couples] of Feb. 13, 2003, MONITEUR BELGE [M.B.] [Official Gazette of Belgium], Feb. 28. 2003, 9880 Canada Civil Marriage Act, S.C. 2005, c. 33 Iceland Frumvarp til laga Um breytingar a´ hjuskaparl´ ogum¨ og fleiri logum¨ og um brottfall laga um sta∂´festa samvist (ein hjuskaparl´ og)¨ [Marriage Act] (138th Legislative Session 2009–2010) Netherlands, Kingdom of the Stb. 2001, p. 9 Norway, Kingdom of Forslag til lov om endringer i ekteskapsloven, barnelova, adopsjons- loven, bioteknologiloven mv. (felles ekteskapslov for heterofile og homofile par) [Law to Amend the Marriage Act], Proposition No. 33 Portugal (Portuguese Republic) Permitte o casamento civil entre pessoas do mesmo sexo [Allowing Same-sex Civil Marriage], Lei n.° 9/2010 de 31 de Maio Spain, Kingdom of Amendment of the Civil Code Concerning the Right to Marry (B.O.E. 2005, 11364) Sweden, Kingdom of LAG OM ANDRING¨ I AKTENSKAPSBALKEN¨ (Svensk forfattningssamling¨ [SFS] 2009‘ 253)

Nations with Constitutional Provisions Explicitly Allowing Same-Sex Marriage None

174. Same-Sex marriage allowed in some parts of Mexico (Mexico City) and the United States (Connecticut, Iowa, Massachusetts, New Hampshire, Vermont, and the District of Columbia). Fall 2010] THE CONSTITUTION OF MARRIAGE 479

Appendix V

Thirty U.S. States with Constitutional Amendments Protecting Conjugal Marriage (Banning Same-Sex Marriage)

Alabama ALA.CONST. amend. 774 Alaska ALASKA CONST. art. 2, § 25 Arizona ARIZ. CONST. art. XXX, § 1 Arkansas ARK. CONST. amend. 83 § 1 California CAL. CONST. art. I, § 7.5 Colorado COLO. CONST. art. III, § 31 Florida FLA. CONST. art. I, § 27 Georgia GA. CONST. art. I, § IV Hawaii HAW. CONST. art. I, § 23 Idaho IDAHO CONST. art. III, § 28 Kansas KAN. CONST. art. 15, § 16 Kentucky KY. CONST. § 233A Louisiana LA. CONST. art. XII, § 15 Michigan MICH. CONST. art. I, § 25 Mississippi MISS. CONST. art. 14, § 263A Missouri MO. CONST. art. I, § 33 Montana MONT.CONST. art. XIII, § 7 Nebraska NEB. CONST. art. I, § 29 Nevada NEV. CONST. art. I, § 21 North Dakota N.D. CONST. art. XI, § 28 Ohio OHIO CONST. art. 15, § 11 Oklahoma OKLA. CONST. art. II, § 35 Oregon OR.CONST. art. XV, § 5a South Carolina S.C. CONST. art. XVII, § 15 South Dakota S.D. CONST. art. XXI, § 9 Tennessee TENN. CONST. art. XI, § 18 Texas TEX. CONST. art. 1, § 32 Utah UTAH CONST. art. 1, § 29 Virginia VA. CONST. art. I, § 15-A Wisconsin WIS. CONST. art. XIII, § 13 (Overall voter approval rates for state marriage amendments cumulatively is sixty-three percent in the thirty-one states that the issue of legalization or recognition of same-sex marriage has come before the voters.)175

175. Lynn D. Wardle, Section Three of the Defense of Marriage Act: Deciding, Democracy, and the Constitution, 58 DRAKE L. REV. 951, 989 (2010). But see Marriage Amendment Summary, DOMA WATCH, http://www.domawatch.org/amendments/amendmentsummary.html (last updated Oct. 15, 2009) (calculating the vote of approval to be over 67%). 480 UNIVERSITY OF SAN FRANCISCO LAW REVIEW [Vol. 45